Wednesday, January 07, 2009

Common-Law Relationships and Separation

Anna and Baron have been living together for 8 years. Anna works as a part time nurse, and Baron owns a successful employment agency. Baron owned a house when they initially got together but sold it and used the 75K towards a house together. Anna had no money at the time but for the first five years shared the mortgage payments with Baron. Baron told Anna initially that it would be better if he is the only one on title since he was putting the deposit down, but that it was ‘their house’. Anna has not paid towards the mortgage for 3 years but does everything else for Baron – housekeeping, cooking, and even house renovations. Baron has not had to hire a receptionist/office manager for the employment agency business because Anna has happily fulfilled this role understanding that the business is a major source of income for Baron and herself.


Anna calls me at LawLINE and tells me Baron has asked her to move out. Furthermore he states that because they were not married she is not entitled to anything. Anna tells me that her friend told her that in BC once you live with someone for 2 years you have a common law marriage anyway. Is this true? If she moves out will she lose her ‘claim’ to anything from him?


After calming Anna down I tell her that there are a few issues here, the best thing to do would be to go through them one by one. I tell her that what we do at LawLINE is give brief, next step legal advice but that after getting some advice from me, and doing some research, she would also benefit from seeing a family lawyer to get some specialist advice.


I tell Anna that in it’s a common misconception that in BC after a certain period of time that one becomes ‘married’ by common law. The only way to become married is to hire a wedding commissioner and choose to marry. What the BC provincial law does tell us about couples that live together for 2 years in a ‘marriage like relationship is that they are defined as a ‘spouse’.
‘So how does that differ from being married?’ Anna asks me.


I tell Anna that for things like spousal support and child support there is very little difference (except there are some time limitations to make a claim for spousal support). There is however a difference when it comes to property division. Married persons can take advantage of the Family Relations Act provisions (part 5) that sets out in section 56 that each spouse is entitled to a half interest in ‘family assets’. Unmarried persons are not able to make a claim under this section, in fact the division of property for unmarried persons is not covered at all in the Family Relations Act.


I can hear Anna taking a sharp breath in. I go on to tell her that this does not mean she is not entitled to anything. If assets are owned jointly then they are presumed to have an equal interest. If the asset is owned by one person, but the other wants to make a claim for a share in the asset, then they need to make a claim under an area of law called trusts. This is best described by JP Boyd on his website JP Boyds Family Law resource. He describes the division of individual assets as:


The essential point of a trust claim is that the non-owning party has, or should be considered to have, a stake in property owned by the other party. The non-owning party's interest in that property is said to be held "in trust" for the non-owning party by the person who owns the property on paper. The non-owning party who is the beneficiary of a trust held by the owning party is entitled to receive compensation for his or her interest in the property subject to the trust. JP Boyd http://www.bcfamilylawresource.com/


I go on to tell Anna that she would need to start the action against Baron (if they can’t settle it between them) in the Supreme court and she would need to prove to the court that Baron was ‘unjustly enriched’, she was correspondingly deprived, and that there is no legal reason for the enrichment. Given the type of claim she has she would be well advised to hire a lawyer for this. She should not presume she would get half either, the courts would look at her contributions (not just financial) and his.


She would be well advised to review JP Boyds site, and the LSS Family law website (http://www.familylaw.lss.bc.ca/) so she is armed with some information before going. She should also consider making a claim for spousal support, she has a time limit of one year after the relationship ends to make a claim. This she can also discuss with a lawyer.

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