Are You and Your Live-in Lover Common-Law Spouses Under the Law?
Written by Kylie Walman
Although you may intend to be living a free-wheeling/no-strings attached existence, if you’ve lived with your romantic partner for more than two years you may be spouses under the BC Family Law Act. And that means when you split, you could be on the hook for spousal support and dividing all of your property 50/50.
In 2013, the Family Law Act came into force and the laws for property division that are applied to married couples when they divorce are now also applied to unmarried couples who are found to be spouses. So how do you know if you’re spouses? In the recent decision of Weber v. Leclerc, 2015 BCCA 492, the British Columbia Court of Appeal made clear that the answer depends mostly on the nature or quality of your relationship, not on what either of you say you intended – particularly after-the-fact when you may have a lot to lose admitting that you intended to live as spouses. That was the situation in the Weber case, where Ms. Leclerc said, after-the-fact, that she never intended to be in a spousal relationship with Mr. Weber. The BC Supreme Court and the Court of Appeal rejected her evidence finding that it wasn’t consistent with the other evidence that made clear the couple were in a “marriage-like relationship” (like the fact that they lived together for 11 years, were sexually active and monogamous, raised their separate children together, went on family trips, and had family portraits taken). The Court of Appeal said that the question isn’t whether the couple intends to be bound by the laws applied to married couples; the question is – did the couple enter into the relationship intending to live together for an indeterminate amount of time, like a married couple? If so, they will be spouses.
Of course the question then is – what is living “like a married couple”? That’s where things can become more difficult to pin down. There is no checklist you can tick off to see if your relationship would be considered spousal – and rightfully so. All relationships, married or not, are different and there are infinite variations of relationships that could be considered spousal. For example, some couples maintain a sexual relationship, while others don’t; some couples mingle their finances while others keep their money and property separate; some couples holiday separately; some couples enjoy public displays of affection, while others are very private, etc. So if this feels like laws foisted on unmarried couples, without them specifically choosing that, as the Court of Appeal pointed out, unmarried couples can choose not to have those laws apply to their relationship – by entering into a legally binding contract, or cohabitation agreement – “opting out” of certain parts of the Family Law Act. So, if you’re approaching that two year mark living with your significant other, it may be time for a conversation and a trip to your family law lawyer.
Ms. Leclerc has since brought an application for leave to appeal the case to the Supreme Court of Canada. A decision from the Supreme Court of Canada as to whether they will hear the case is expected to take anywhere from two to four months.