Family law in British Columbia doesn’t talk about people who are “common-law spouses” and never has

Family law in British Columbia doesn’t talk about people who are “common-law spouses” and never has

Once upon a time, people could marry each other and create a legal relationship simply by agreeing to marry, without getting a licence from the government, the publishing of banns by the church, or having a particular kind of ceremony. Because the rights between the spouses came from principles established by the common law, these became known as common-law marriagesmon-law marriages were valid in England until the Marriage Act of 1753, better known by its full flowery name, An Act for the Better Preventing of Clandestine Marriage.

Normally I wouldn’t make a fuss about terminology like this, except that the phrase “common-law spouses” kind of suggests that there are certain rights and entitlements that a couple get from the operation of the common law, and this really isn’t the case and it hasn’t been the case for two-and-a-half centuries. What’s really important is whether people qualify as “spouses” – or as “common-law partners” or “adult interdependent partners” or whatever – under the particular law that they’re looking at.

There is no such thing as a “common-law spouse” or a “common-law marriage” in British Columbia. If you’re not married but you’re a “spouse,” it’s because of section 3 of the Family Law Act. Marriage and the legal requirements of marriage are discussed in the Married Spouses and the Law on Marriage section of this chapter.

Qualifying as an unmarried spouse

It’s usually pretty hard to argue that you’re not married if you’re a married spouse. You had a ceremony in front of a bunch of people, including at least two witnesses as required by section 9 of the provincial Marriage Act, and exchanged vows and rings. Even if you’ve lost your ring and hidden your marriage certificate, those witnesses will still be around to talk about your wedding.

It’s a lot easier for unmarried spouses to argue about the status of their relationship, and the stakes can be quite high. If a couple were just roommates, for example, neither of them will be able to ask for a share of the family property or for a contribution to the family debt, and neither will be able to ask the other to pay spousal support.

The definition of “spouse” from section 3 of the Family Law Act is reprinted above, under the heading “Provincial legislation.” It requires that unmarried people have lived together in a marriage-like relationship for at least two years, or for less than two years if they’ve had a child together. Let’s break this down a bit.

“Living together. “

“Living together” means, well, living together or cohabiting. (The thing that separates relatives and roommates from spouses is the “marriage-like relationship” requirement, and we’ll talk about this next.) There are two aspects of “living together” that may not be obvious.

First, the two-year period doesn’t need to be continuous. Going out of town for work for three months, for example, won’t be considered to have interrupted the two-year period unless one or more of you thought your relationship was over while you were out of town. Neither will the two-year period be interrupted because you went on separate holidays or left to visit your parents for a few days.

Second, living together doesn’t necessarily mean living together all the time. Some people try to avoid their relationships qualifying as “spousal” by making sure that they don’t spend more than three days out of every seven together, by rotating weeks between living in a shared home and living in a separate home, or trying to figure out some other way of splitting time. You cannot count on this sort of cleverness to save you from being found to have been “living together,” especially if the court sees you as trying to duck your responsibility to another person.

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