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Divorce and Separation

Common Law Spouses and Separation

Benjamin D. Levine has been practicing family law in Prince George and Northern British Columbia for over 16 years.  The BC Family Law Act regulates separation between spouses, which is defined as two people who are married to each other, have lived together for 2 years, or who have a child together. Sounds simple? Think again. While determining if spouses are married is easy, determining whether unmarried couples are "spouses" as defined in the Act is not.

Generally, two people who have lived in a marriage like relationship for at least two years are considered "spouses" for all purposes within the Act. If two people haven't lived together for 2 years, or unmarried, but have a child together, they are "spouses" for all purposes EXCEPT for issues relating to property and pension division. Prior to 2014 common law spouses (unmarried spouses) were unable to make a property claim under the family law legislation. However, the BC Family Law Act, which came into force in 2013, included common-law-spouses in the Act's property division regime, granting them the same property rights as a married spouse. A common law spouse can also apply for child and spousal support just as a married spouse can.

What Constitutes "Marriage Like Relationship"?

Of course, the devil is in the details. To determine if a "marriage like relationship" exists, we must define what "marriage like relationship means. Not always so simple, which is just one reason you should talk to us first. Briefly, courts consider the following factors to determine if a relationship is "marriage like":

To start the courts will often look into your living arrangements. Do you live together or apart? Do you share ownership of the place you live in or do you both have separate homes and spend time in each together?

Judges will also to consider your relationship. Is it an intimate or romantic relationship? How long has the relationship been going on. What attitudes did you have toward one another during your relationship? Were you affectionate toward each other? Was your relationship monogamous and sexually exclusive? Did you both consider each other to be your partner in life?

Looking further into the dynamics of home, the courts will want to know how responsibilities and expenses were shared between you and your partner. Are general home owning responsibilities shared such as expenses and general cleaning and upkeep of the home? If children are involved are you or your partner involved in the other's children's lives? Do you have shared investments?

The courts will also consider your social life. Do you have shared friends? Do you vacation together regularly? Do you attend social functions and appear to others as a couple when you go?

Not all of these questions will be asked or considered when determining if your relationship is "marriage like" but your answers will give you a general idea of whether or not you were or are in fact "spouses" under the Act. If you are or think you might be in a spousal relationship, come and speak with a lawyer at Levine & Company as we can help you work through the confusion of determining if your relationship was indeed a "spousal", and help guide you through the next steps to ensure your needs are met and that you can move forward from your relationship confidently.

As important, if you think want to protect yourself from the consequences of becoming a "spouse" and are concerned about protecting assets, come and speak with us. We can help you and your partner form a cohabitation agreement that will take out the ambiguity and let you both decide what terms will work best for you in the event of separation.  Call Benjamin D. Levine in Prince George BC today!

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