From the Articles
Common Law Spouses and your rights under the New Family Law Act, March 2013
Under the current law in British Columbia, persons who are not married cannot rely on the Family Relations Act (FRA) to divide property. If you are married, then the FRA sets out a presumption for an equal division of property between husband and wife. Common law spouses who are not on title to a home, even those who have been married for many years, are left having to prove contribution to a property in order to make a claim. If one party owned a house where the couple had lived for twenty years for example, the non-owning party would be put in the position of having to prove their contribution, seeking a portion of ownership or payment using the laws of constructive trust. Even after twenty years of living together, if you are not on title, and you haven’t made a direct contribution by way of mortgage payments, then you may be out of luck. Pension division is also off limits for non-married persons under the FRA, unless, again, a direct contribution can be shown by the non-owning spouse to the asset. Gifts Inheritances have been a grey area for quite some time in family law, and the courts have considered a number of factors when faced with claims for ownership including: how the recipient received the inheritance, whether or not it was used for the family, whether it was received at the beginning or in the middle of a long relationship, or at the tail end. The obligation to support a spouse during and after a relationship has always existed for married and non-married persons, but the limitation period in which you must apply for spousal support is currently different – for married persons it is two years and yet non married persons have just one year.
All of this is about to change.
The New Family Law Act brings with it sweeping changes to family law in British Columbia, particularly for common law couples, meaning non-married persons living together in a marriage like relationship for over two years.
“Spouse” is defined to be (a) married persons, or (b) persons cohabiting in a marriage like relationship for more than two years, AND (c) persons cohabiting in a marriage like relationship shorter than two years who have had a child together.
A claim for spousal support must be brought within two years of divorce or nullity for married spouses or two years from the separation date for non-married spouses.
Division of Property . Property includes Family Property , family debt and excluded property.
Family Property is all property owned by either party at the date of separation including assets acquired after separation with family property. This would include corporate interests, ventures, partnerships, bank accounts, annuities, RRSP’s private pensions AND, the increase in value of excluded property.
Family Debt is all debt incurred by a spouse during the spousal relationship including debt incurred after separation to maintain family property.
Excluded Property All property owned by a spouse prior to the commencement of the spousal relationship is excluded! This includes gifts, inheritances, certain court awards, certain insurance proceeds, certain trusts received during the relationship and property bought with excluded property.
There are certain presumptions that are embedded in the FLA, including that spouses are presumed to be entitled to half of family property and to be half liable for family debt regardless of use or contribution (this gets rid of the “ordinarily used for a family purpose” test). Excluded property is presumed to remain the property of the owning spouse (but remember that the increase in the value of the excluded property during the period of cohabitation is considered to be family property).
Spouses for the purpose of property division are married persons or persons who have cohabited for more than two years. This means that those who have lived together for less than two years and have a child, are not included and are not able to rely on the FLA for claims to division of property. Claims for property division must be brought within two years of divorce in the case of married persons, or two years from separation in the case of non-married spouses.
In a nutshell, what you need to know if you are a common law spouse:
- you and your spouse need to discuss your intentions – what do you want? If you want “what’s yours is yours and what’s mine is mine” then you need to speak to a family law lawyer and get a cohabitation agreement. Do you want to keep your inheritance and the increase in value from the date you received it? If so, you need an agreement.
- if you want to share everything as though you were married, and you want your spouse to have access to complete division of assets and support from you in the event of separation, then you don’t need to do anything, except, you should list and value your assets now.
- if you are about to receive an inheritance, you need advice on how best to receive it.
- get a cohabitation agreement.
- get a cohabitation agreement.
- 6. get a cohabitation agreement……
My thoughts for now.