In BC, individuals in a common-law marriage are not considered married. However, the rights afforded to common-law partners, during a separation, are generally the same as those afforded to individuals who have been married in a formal ceremony or through civil procedure.
This is particularly true in instances that involve children. The law always attempts to approach issues from the viewpoint of the child whenever a decision is being made that will impact that child’s life and security. To a child, there is little difference between a common-law marriage and one that has been sanctioned by the courts or a religious institution. The result of this interpretation of the law is that child support and child custody obligations in a common-law marriage are identical to a regular marriage.
The most significant point of difference between the rights of a married partner and a common-law partner has to do with issues of property. When a spouse in a common law-marriage passes away without a will, the other spouse is not automatically given the right to inheritance. Likewise, when a common law marriage ends, there is no automatic right to the division of property. Usually each party simply takes the assets that are in their name at the time of separation. Additionally, in a common-law marriage if a spouse does not have a legal document tying them to their matrimonial home, than they have no right to stay there if the relationship ends.
Occasionally a common-law partner will feel that they’ve been unjustly treated. In instances of this type, partners can make a claim for unjust enrichment. However, the expense of a claim of this type is high and the likelihood of it succeeding low. It’s important to have a lawyer carefully evaluate your situation prior to making a claim for unjust enrichment.
You do not need to be formally divorced when ending a common-law marriage.
Am I in a Common-law Marriage?
Whether or not a live-in relationship can be considered a common-law marriage generally depends on the amount of time that the couple has been living together. This period of time varies between the different provinces of Canada. In BC, a common-law marriage requires only two years of cohabitation.
Same-Sex Common-law Relationships
It’s important to note that in Canada, a common law marriage can occur in a same-sex relationship as well as a heterosexual relationship and that there is no legal distinction between the two.
For more information on separating from your common-law spouse, please contact the family law lawyers at McQuarrie Hunter LLP.
← back to Family Law Page