Separating as a Common Law or Married Couple in BC

When couples in British Columbia decide to separate, many wonder if the law treats common law couples differently from married couples. The answer is both yes and no. The law distinguishes between a common law partner and a married couple, and each status comes with its own legal implications.

In BC, common law relationships and marriage share many similarities under family law, especially regarding rights and responsibilities related to child support, spousal support, and property division. However, the legal processes and deadlines that follow separation can vary. Understanding these differences is crucial for protecting your rights and making informed decisions as you navigate this significant life change. The process can be complicated, especially when it comes to dividing property and determining support obligations.

What Makes a Couple “Common Law” in BC

In British Columbia, a couple is considered to be in a common law relationship (or "spouses" under the Family Law Act) when they have lived together in a marriage-like relationship for at least two years. Unlike marriage, this status does not require a formal ceremony, legal paperwork, or any official declaration. For example, many couples may not realize they have crossed this two-year threshold until they separate. Additionally, if a couple has a child together, the Family Law Act may recognize them as spouses even before reaching the two-year cohabitation period.

Once you meet the criteria for a common law relationship, the law treats you as spouses for important family law matters. This includes parenting arrangements, child support obligations, spousal support claims, and dividing property and debt. Knowing whether you are considered common law is essential because it directly affects your legal rights and responsibilities.

Common law partners can protect their rights and clarify expectations by creating a cohabitation agreement. Cohabitation agreements should always be put in writing to ensure they are legally enforceable and properly reflect the intentions of both parties.

The Two Year Limitation Period for Common Law Couples

A critical deadline for common law couples is the two-year limitation period to start a court claim for property division or spousal support after separation. This limitation period is set by statutes and rules under both provincial and federal law, which govern the timeframe within which a person must act to preserve their legal rights. This means you must file any court claims within two years of separating if you want a judge to decide these issues.

For common law couples, this two-year limitation period can pass quickly and has serious consequences. If you miss this deadline, the courts may no longer have jurisdiction to hear your claim. It is the responsibility of each person involved to ensure claims are filed on time.

For common law couples, this two-year limitation period can pass quickly and has serious consequences. If you miss this deadline, the courts may no longer have jurisdiction to hear your claim. It is the responsibility of each person involved to ensure claims are filed on time.

Even if you plan to resolve everything through mediation, it is essential to keep this timeline in mind.

Even if you plan to resolve everything through mediation, it is essential to keep this timeline in mind. In practice, this means:

• If you reach a full separation agreement during mediation, the limitation period is not an issue.

• If negotiations stall or your partner refuses to participate, you may need to file a claim with the court to preserve your rights while continuing to seek an out-of-court resolution.

• Waiting too long to act may result in losing your ability to claim spousal support or a share of family property and debts.

Examples of missed limitation periods include cases where one spouse delayed filing and lost the right to claim property division, or where a person failed to seek spousal support within the statutory deadline and the court dismissed the claim.

When you're part of a mediation process, it's important to understand these deadlines clearly so you can develop a strategy that protects your interests while maintaining a collaborative approach.

How Separation Works for Common Law Couples

Separation for common law couples is much like separation for married couples. There is no formal legal process required to separate. Separation happens when one or both partners decide that the relationship has ended and begin living apart emotionally or physically. Becoming separated is often the first step in the process of ending a relationship, and it is important to understand the legal implications of this stage. Interestingly, some couples separate while still living under the same roof, which is more and more common with housing costs in BC.

In family mediation, the focus is on resolving the core issues that arise during separation, regardless of whether the couple is married or common law. These issues typically include parenting arrangements, child support, spousal support, and the division of property and debts. Even if some of these matters do not apply to your situation, it is important to address them all in your separation agreement. Dealing with issues like property, money, and support can be complicated and is best dealt with the help of a lawyer. This ensures you have a comprehensive and legally enforceable plan that covers every aspect of your separation.

A family mediator can provide valuable guidance when dealing with the legal and financial aspects of separation.

How Mediation Supports Both Married and Common Law Couples

Mediation offers the same valuable benefits to both married and common law couples. During mediation, both parties come together to review relevant information, understand the applicable laws under the BC Family Law Act, and make decisions collaboratively. I guide you through each key issue, helping you comprehend how the law applies specifically to your situation.

When decisions are reached, I draft a comprehensive separation agreement that clearly outlines your plan. Having a written agreement is essential for enforceability and clarity. This document is legally sound and enforceable, providing certainty and clarity for the future. For married couples, this agreement can be used to file an uncontested divorce application. For common law couples, once signed, the agreement becomes the final resolution of your separation.

Key Difference: Married Couples and the Divorce Process

One of the most significant differences between married and common law couples is the requirement of a divorce for married couples. Divorce is a legal court order that officially ends a marriage. However, you cannot apply for a divorce until all family law issues, such as child custody, support, and property division, have been resolved. Most couples reach this resolution by creating a separation agreement, which is then used to support the divorce application. It is important to have a lawyer write or review your agreement to ensure it meets legal standards. In many cases, once the agreement is in place, divorce becomes a straightforward paperwork process without the need to appear in court.

On the other hand, common law couples do not require a divorce to end their relationship legally. Separation and resolution of family law matters mark the end of the relationship. There is no additional court process required to dissolve a common law relationship.

Final Thoughts

Whether you are married or in a common law relationship, your separation deserves clear guidance and support. The law in British Columbia treats both types of couples fairly, but important differences exist in the legal deadlines and final steps involved. Understanding these differences early on empowers you to make thoughtful decisions that protect your rights and help you move forward with confidence.

If you need assistance navigating the complexities of separation, I am here to provide legal guidance, support your discussions, and help you create a separation agreement that works for your family. Together, we can ensure your separation is handled with respect, clarity, and fairness.