Noémie Gagnon-Bergeron- Published July 11, 2023
“If you liked it then you should have put a ring on it” is a classic anthem of our generation. Fortunately or unfortunately, depending on where you stand, the law doesn’t see it that way. If you liked it but didn’t put a ring on it, you might still be or have been a spouse.
Some couples are well aware of this and aren’t shy to share this fact with their friends and family. We hear it more and more these days: “We aren’t married, we’re common-law!” But what does that mean? How does a couple transition from being in a serious relationship to being “common-law”? And why is this important?
WHAT DO PEOPLE MEAN WHEN THEY SAY THEY ARE “COMMON-LAW”?
Typically, when people say that they are in a “common-law” relationship, they mean that they have acquired the rights and responsibilities of a spouse, without having gone through the paperwork of an actual marriage, and they’re right (except for the terminology, but we can get into semantics later)! The law in British Columbia, as set out in the Family Law Act, recognizes that couples can become spouses in three ways:
- Through marriage.
- By living together in a “marriage-like” relationship for a continuous period of at least two years.
- By living together in a “marriage-like” relationship for a shorter period and have had a child together.
The second and third ways of becoming a spouse happen automatically – meaning the couple doesn’t have to do any paperwork at all for the law to see them as spouses. Consequently, lots of couples are actually spouses without even knowing it!
HOW DO I KNOW IF I’M IN A “MARRIAGE-LIKE” RELATIONSHIP?
Note that throughout this blog post, a “marriage-like”, “common-law”, and “conjugal” relationship is used synonymously.
The Supreme Court of Canada in M. v. H., 1999 CanLII 686 (SCC),  2 S.C.R. 3 at para. 59 used a list of factors to determine whether the relationship in question was “conjugal”. They included shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. The Supreme Court went on to say that “in order to come within the definition [of a conjugal relationship], neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
While using this list of factors can be useful, it cannot be used as a checklist. In Austin v. Goerz, 2007 BCCA 586, the BC Court of Appeal emphasised that the presence or absence of any particular factor cannot be determinative of whether a relationship is “marriage-like”, because no relationship will invariably have all characteristics present.
Interestingly, the BC Court of Appeal in Weber v. Leclerc, 2015 BCCA 492 stated that even the intentions of folks in a relationship isn’t the determining factor. In other words, while the court will consider subjective evidence from either party to the relationship that they were in the relationship with the intention that it be “marriage-like”, the court will test that evidence against the objective evidence of how the couple actually interacted, which could ultimately refute their intentions.
Needless to say, the courts in BC have recognized that “marriage-like” relationships are many and varied. In some instances, couples will be completely financially independent, while others will blend their finances and property. For some couples, sexual relations will be very important, whereas it might not be the driving force in the relationship for others. Some couples might do everything together and engage in gross amounts of public displays of affection, while other couples reserve their affection for one another when alone together only. Having children is obviously an important factor, but it’s not determinative. Sometimes couples who started living together aren’t in a “marriage-like” relationship because they broke off the romantic part of their relationship, but still live under the same roof. Other couples might have started out living together and continued their “marriage-like” relationship through a long-distance relationship. In short, knowing whether or not you’re in a “marriage-like” relationship will really depend on your specific circumstances.
WHY IS THIS IMPORTANT?
You might not have a “legally spouses” date marked in your calendar to celebrate with your partner, but maybe you should. Why? Because that’s the day that you and your spouse will be deemed to have some new found rights and responsibilities under the law. Also, if you can clearly identify that date, that means you know the date of the start of your “marriage-like” relationship, which is also very important!
One of the acquired rights for spouses includes property rights. This is governed by Part 5 of the Family Law Act. For example, once you are a spouse, married or unmarried, you and your spouse have an equal interest in what is called “family property”. Our next blog post will go into more detail on what “family property” means, but generally speaking family property is everything that you and your spouse owned, together or separately, on the date that you separate. This includes real estate, investments, RRSPs, interest in a business, pensions, insurance policies, your bank accounts, and any increase in value of property since the start of the marriage-like relationship. The bold here is not a typo – the valuation dates back to the start of the relationship. This applies to married and unmarried spouses alike.
Let’s break that last point down by using a hypothetical example. You owned a house worth $600,000 before you met your beloved. In January 2021, your special person moved into your home and you began living in a “marriage-like relationship”. You both spent the following two years making renovations on the house together (turning that old basement into a luxurious work space maybe). Let’s say that all of those renovations were done in the earlier part of January 2021. Let’s also assume that in January 2023 you got an appraisal on the house, and it was valued at $750,000 due to the renovations. Great job!
But now it is May 2023 and you’ve decided to end the relationship and sell the house. Since you and your ex technically became spouses in January 2023, on separation they are entitled to half of the family property. With the hot housing market, the value of the house increased even more to $800,000 by May 2023! Although the house is yours to sell, the increase in the value of the house from January 2021 until the date that you separated is family property. That means that your spouse is entitled to $100,000 of the $200,000 increase in value of that house. Now you might be thinking, “hey, that’s not fair! We only became spouses in January 2023! Surely they are only entitled to the $50,000 increase in value of the house that happened from the time we became spouses, being January 2023, until we separated in May 2023?!” Nope. Family property is calculated from the date that your relationship began, not from the date you hit that two-year mark of being in a “marriage-like relationship”.
The same applies to family debt. Our informative-chain of blog posts will go into this in more detail as well. For the purpose of this blog though, you just need to know that both spouses are equally responsible for any financial obligation incurred by either spouse from the beginning of the marriage-like relationship until the date of separation. If you don’t know exactly what your spouse has in terms of debt, this can result in a broken wallet along with a broken relationship. Not to mention that if a spousal relationship ends, one partner may be entitled to spousal support. That’s right, spousal support applies to unmarried spouses!
In our last blog post, we talked about why couples should get a prenuptial agreement or a cohabitation agreement. Couples that don’t want to get married typically only think about this step in a relationship when having children together or after living together for many years. However, as just described, if you and your “spouse” end the relationship without a cohabitation agreement in place, you might be stuck with some unwanted debt or have to share property with your now-ex that you thought was yours. Unpleasant surprises like that can easily be avoided by signing a cohabitation agreement. Getting one as soon as you become a spouse is always better than being sorry later.
So, if you like it but don’t want to put a ring on it, and you’ve been in a “marriage-like relationship” for at least two years, consider getting a cohabitation agreement instead! Go check out our other blog post and contact any of our lawyers here at Portside Law to help you and your partner get on the same page!
Disclaimer – By contacting Portside Law Corporation through email, phone or direct message does not establish an attorney-client relationship. An attorney-client relationship is formed once both parties agree in writing to such a relationship. The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.