When you are separating, the laws that apply to your case regarding property division and spousal support mainly depends on whether you are in marriage-like/common law relationship, explains Nassim Nasser, our Vancouver-based family lawyer. Thus, it is important to know whether you are in a marriage-like/common law relationship so that you can protect your interests in your assets and your income early on.
Determining the duration of relationship is also important for married couples who are now divorcing because it may impact their property rights, entitlement to spousal support, and duration of spousal support. For example, property acquired post separation is not considered family property, unless it is traced to a family property.
Nassim Nasser, our Vancouver-based family lawyer, says that it is also helpful to know the length of your marriage-like/common law relationship because this information will help you formulate and strategies your case whether for court or for settlement purposes.
Contact our wealth protection lawyers today to see how we can help you protect your property rights and interests.
How to know if you are in a marriage-like/common law relationship?
Nassim Nasser, our Vancouver-based family lawyer, points out that the court will consider the following principles and factors in determining whether you are in marriage-like/common law relationship (as set out in C.F.M. v G.L.M, 2018 BCSC 815 (CanLII)):
[8] A spouse under the FLA can claim support and a shared interest in family property. No one factor governs whether a relationship is marriage-like: Austin v. Goerz, 2007 BCCA 586 at para. 58. Every case must be evaluated individually considering all factors supporting or negating spousal status.
[9] In Dey v. Blackett, 2018 BCSC 244 at paras. 192-196, Schultes J. provided the following overview of the principles to be borne in mind in determining the question at bar:
[192] The determination of whether a relationship was marriage-like requires a holistic approach, in which all of the relevant factors are considered and weighed, but none of them are treated as being determinative of the question: Austin v. Goerz, 2007 BCCA 586 at paras. 58 and 62.
[193] While a checklist approach to this question is not appropriate, it can still be helpful during the analysis to consider the presence or absence of commonly-accepted indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship: Weber v. Leclerc, 2015 BCCA 492 at para. 25. A frequently-cited authority has identified these indicators as including shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple: M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 at para. 59, citing Molodowich v. Penttinen(1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 at para. 16 (Ont. Dist. Ct.).
[194] While financial dependence was at one time considered an essential aspect of a marriage-like relationship, this is no longer so: Austin at paras. 55-56.
[195] The intentions of the parties, particularly whether the saw the relationship as being of a lengthy, indeterminate duration, will be important to the determination of whether the relationship was marriage-like. However, evidence of their intentions must be tested against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship: Weber, at paras. 23, 24. In other words, subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such: Takacs v. Gallo (1998), 1998 CanLII 6429 (BC CA), 48 B.C.L.R. (3d) 265 (C.A.) leave to appeal to SCC refd, [1998] S.C.C.A. No. 238, at para. 53.
[196] In weighing the various factors, it is also an error to give undue emphasis to the future plans of a couple, in contrast to the current realities of their respective situations: Takacs at para. 58.
[10] A party to a relationship that lacks such characteristics is not entitled to pursue FLA remedies. A person is a spouse or not. There is no middle ground: Gostlin v. Kergin (1986), 1986 CanLII 164 (BC CA), 3 B.C.L.R. (2d) 264 (C.A.) at para. 16. People may live together continuously and interdependently and yet fail to establish that they developed the kind of psychological and emotional union associated with marriage: Takacs v. Gallo (1998), 1998 CanLII 6429 (BC CA), 48 B.C.L.R. (3d) 265 (C.A.)at para. 55, leave to appeal refd, [1998] S.C.C.A. No. 238.
[11] The marriage-like commitment must be combined with sufficient evidence of two years of continuous cohabitation. The FLA has no application to more transitory connections. There is, of course, substantial unpredictability in the progress of nascent relationships and this is why the legislature fixed a two year standard before imposing legal matrimonial obligations on common law couples without children: Parke v. Veale, 2015 BCSC 2554 at para. 79.
Keep in mind that proving if your in marriage-like/common law relationship may be difficult.
Why is the date of commencement or termination of marriage-like/common law relationship important?
If you are a resident in BC, the only legislation that you can rely on for family property and debt division is BC Family Law Act. The Divorce Act (Canada) does not deal with property and debt division. If you are married, you can apply for spousal support under BC Family Law Act or Divorce Act (Canada).
To have standing to apply for property and debt division or spousal support under the BC Family Law Act, you must be considered a spouse under the BC Family Law Act, explains our Vancouver-Based family lawyer, Nassim Nasser.
The definition of spouse is set out in section 3 of the BC Family Law Act, which states:
(1) A person is a spouse for the purposes of this Act if the person
(a)is married to another person, or
(b)has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
(2) A spouse includes a former spouse.
In simple words to have standing to apply for spousal support or property division under the BC Family Law Act, you must fit within one of the following categories, explains our Vancouver-Based family lawyer, Nassim Nasser:
- You are married;
- You have been in a marriage-like/common law relationship of at least 2 years and you have applied for property division or spousal support under the BC Family Law Act within two years of the date of separation (if you want to qualify for both property division and spousal support under the BC Family Law Act);
- You have been in a marriage-like/common law relationship of any duration, you have a child together, and you have applied for spousal support under the BC Family Law Act within two years of the date of separation (if you want to qualify for spousal support under the BC Family Law Act); or
- You are divorced and have applied for property division or spousal support under the BC Family Law Act within two years of the date of judgment for divorce (note the Divorce Act (Canada) does not impose any deadlines for applying for spousal support).
Our Vancouver-based family lawyer, Nassim Nasser, emphasises that the date of commencement or termination of your marriage-like/common law relationship is important because the duration of your relationship is one of the only factor determining whether the property division scheme or spousal support provisions of the BC Family Law Act apply to your case if you do not have a child together.
If you have separated and if you would like to have a share of the assets, then ideally you would want to take advantage of the BC Family Law Act’s property division and spousal support provisions. The reverse is true if you do not want to share your assets or your income (i.e. if you do not want to share your assets or if you do not want to pay spousal support, you want to argue that the BC Family Law Act does not apply to your case).
How can I protect my assets if I am anticipating a common law/marriage-like relationship?
If you are anticipating a common law/marriage-like relationship, Nassim’s best advice to you is to consult with a family lawyer early on so that you can get proper legal advice about how to protect your interests. Having a marriage agreement/pre-nuptial agreement in place before the commencement of your marriage-like relationship may help you protect your property rights and mitigate against the possibility of your ex seeking spousal support upon separation or divorce.
It is important that your marriage/pre-nuptial agreement stands the scrutiny of the court if your spouse challenges the agreement in future. Therefore, it is crucial from Nassim’s perspective to have a carefully drafted marriage/prenuptial agreement in place and to follow all the legal procedural requirements to ensure that your marriage agreement is upheld in future.
Contact us today to see how our wealth protection lawyers can help you protect and preserve your hard-earned assets and income.
