When Are You Legally Common Law?

Posted:  Oct 17, 2019

More people are increasingly choosing to cohabitate rather than seal the deal with a marriage license and expensive wedding ceremony. This leaves many couples unaware of the legalities of common law marriages, and indeed, uncertain they are technically common law or not.

According to ‘What is a spouse’ at What is a spouse? - Province of British Columbia, you are a spouse under the BC Family Law Act if you are or were married, have lived in a marriage-like relationship for a specific period of time, or have lived together as a couple for a minimum of 2 years.  Yet, in the case of dividing property or debt, you must have been in the relationship for at least 2 years.

Furthermore, several myths surround what encompasses a common law marriage. Some people assume the same rules apply across Canada, but that simply is not the case. For example, a couple must be living together in a conjugal relationship for 3 or more years, (or 1 year with a child) in the provinces of Ontario and Manitoba before they can claim common law status. In contrast, a couple must live together for 2 years in BC. BC generally regards common law partners the same as married couples, and they thereby have the same rights and responsibilities as legally married couples.

Many other factors come into the equation when proving a common law marriage. Consider whether you live under the same roof, have a sexual relationship, or support each other emotionally. What type of conduct regarding meals, household chores and social activities were participated together? Did you live as a couple in your community and share financial burdens? Are children involved?

Clearly, knowing your rights under the BC Family Law Act is important if you are, for example, leaving a relationship.

In addition, proof may be required by a lawyer to confirm a common law relationship existed. Proof may be provided in the form of tax returns, joint bank accounts, and even social media photos displaying that a relationship existed. You may believe you were in a common law relationship, but if the other partner refutes it, you will be required to present solid evidence.

The distribution of property also differs from province to province. Couples who have cohabitated in BC for 2 years are entitled to a 50/50 split of shared debts and assets, excluding pre-relationship property and inheritance. However, when it comes to the division of property in Quebec, since they do not recognize common-law couples as such, each individual keeps what they own.

Obviously, there are ample particulars when it comes to assessing if you are legally common law. That’s why it’s important to arm yourself with the appropriate legal knowledge. For instance, spousal support is not automatic, and one party must be deemed entitled to it depending on other factors in the relationship. In New Brunswick, spousal support is possible under the New Brunswick Family Services Act. In Alberta and Newfoundland, common law couples can also make a claim for spousal support.

Additionally, children affect how a common law relationship is viewed in the eyes of the law. A couple is often considered common law years before a childless couple.

Fortunately, Stevens & Company Law is here to help you get the straight facts on common law relationships. Don’t rely on your mom’s or best friend’s outdated convictions on this important issue. Contact us for further information you can depend on for your present and future interests.


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