Common Law or not Common Law, that is the question

Common Law Spouse

It is very common in romantic relationships for couples to move-in together first and discuss marriage (if at all) down the road. Often we hear the term “common law relationship” or “common law spouse”.  The term “common law” can even be found when you are filing your taxes (although the definition has different requirements under family law).

So why do we care about this? If you are a couple that has been in a certain type of relationship for a period of two continuous years or more, it may be akin to being married, without the formality of a marriage.  This is more formally defined as a “marriage-like relationship” under the Family Law Act, where the parties are considered “spouses”. In the event of separation, it can lead to potential claims for property division and spousal support by either spouse.

Section 3(b) of the BC Family Law Act provides a definition of a “spouse”:

Spouses and relationships between spouses

3  (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…

Marriage-like Relationship

So what does a “marriage-like relationship” mean? 

This was discussed at length in the case of Kiss v. Leung, 2024 BCSC 2335.  In this case, Mr. Kiss made claims to family property based on an alleged marriage-like relationship. In this case the court reviewed a complicated chronology and fact pattern, which included joint accounts, rental agreements, business partners, and a dog, among others.

To determine the existence of a “marriage-like relationship”, a necessary prerequisite to determining property claims, the court provided the following guidance:

• The inquiry is contextual involving a question of mixed fact and law, and it involves both the parties’ subjective intentions and the objective evidence before the court.
• The burden is on the claimant (the party making the claim) to prove they meet the definition of a “spouse”.
• The cohabitation requirement (2 years) is approached with flexibility and may be satisfied even if the parties may have lived apart at different locations for extended periods.
• There is no specific definition. The determination is holistic in which all relevant factors and aspects of the parties’ relationship are considered and weighed, which can range from financial dependance, sexual relationships, and the comingling of property and finances.
• No factor alone is determinative.  A “checklist” approach should not be employed.  However, some factors considered include:
  • shared shelter;
  • sexual and personal behavior;
  • services;
  • participation in social activities;
  • economic support and children; and
  • societal perception of the couple.

Key Takeaway

If you are in relationship, it is important to consider if you are in a marriage-like relationship, and if so, how long have you been in a marriage-like relationship. After two years of being in a marriage-like relationship, it is akin to being married, and entitlement to property division and/or spousal support may arise. It is noteworthy that the courts have been clear that “a person is either a spouse or is not” and there is no middle ground (C.F.M. v. G.L.M., 2018 BCSC 815).

If you have questions about family law matters, feel free to contact C. Ryan Chan or any other member of our Family Law Group. You may stay informed by exploring our recent blog posts here.