Ending a common-law relationship can be just as complicated as a divorce. There is no marriage certificate in common-law, so many people think that the law does not apply to them. But in British Columbia, it does apply. Common-law partners have legitimate rights and duties in relation to property, debt and support and specific time limits to comply.
Under the Family Law Act, our family lawyers in Surrey can assist common-law spouses who want to understand their rights and duties and want to protect what is important to them.
Are You Considered Common-Law in BC?
This is the first question you have to answer, as it will affect your rights. If you have either of the following you are a spouse for the purposes of the Family Law Act, and can file a petition for divorce in court:
- Spent at least two years in a marriage-like relationship
- Had a child together — in which case you may be a spouse for support purposes, even if you lived together for less than two years.
After 2 years, the law applies to you like a married couple when you have to divide property, debts, and spousal support. Lots of couples do not know that they have reached that point until they divorce. For more detailed information on the differences take a look at our marriage vs. common-law and common-law rights pages.
When Are You Separated?
No official legal procedure exists to end the relationship with a common law partner and no document is required to be filed and no court order is needed. Partners are separated when one decides that the relationship is over and doesn’t take the necessary steps.
You can even be separated, but still live in the same house, for financial reasons or for the kids, as long as you’re no longer a couple. Your separation date is important because it is the date that determines what is considered to be shared property and shared debt.
Dividing Property and Debt
Property division is governed in the same manner as married couples do after they get married. The initial point is at a 50/50 ratio:
- Family property: It refers to any items that either of you had acquired since you began your relationship, whether a savings account, a car, the family home or a pension – which will be shared with the other, irrespective of who owns it.
- Excluded property: A property you brought into the relationship and most of the gifts and inheritances received during the relationship usually remain with that partner. All increases in its value, however, made during the course of the relationship are shared.
- Family debt: Debts accumulated during the relationship is usually split equally too.
It is not a hard and fast rule, it is equal division. When a property or debt must be split, a court will only make an unequal division if “significantly unfair. This is explained in greater detail in our property division page.
Spousal and Child Support
As a spouse, you may receive (or be required to pay) spousal support. That’s not automatically given; it is dependent on the length of the relationship, on each person’s income and earning capacity and on their respective roles.
This is not the case for child support. It is a right of the child, as determined by its Federal Child Support Guidelines calculation and is not dependent on being married. The children’s best interests are always taken into account when making children arrangements.
The Two-Year Deadline You Cannot Miss
This is the most important thing on this page. If you are separating from a common-law partner, a strict time limit applies.
The Family Law Act provides that a common-law spouse may file a claim in court for the division of property or debt, division of pension and spousal support within 2 years of separation. If you miss the window, your claim may be “statute barred”, and so be lost forever despite being a strong claim.
Notice that this is unlike married couples where their two-year period starts with the divorce order, and yours starts when you separated. That frequently gives common-law partners a shorter time frame than they would prefer. This limitation period does not apply to claims for child support.
Protecting Yourself with an Agreement
The majority of common law separations are best settled through negotiation and not litigation. If you have got an agreement, you have drafted yourself, a separation agreement will allow you to resolve your property, debt and support issues all in one document, on your own terms. If you do it right, you can override the default provisions of the Family Law Act.
How CityLaw Can Help?
Common-law separations are as binding as divorce, but they aren’t as clearly documented as divorce, so that’s why the good advice is important. Our family law experts can help you ensure that you are entitled to be, secure your inheritance of property and debt, settle support and parenting issues, and behave properly within the two-year time limit. We settle things out of court, if possible, and fight for you if it is needed.
