Are you in marriage-like relationship?
By Tanya Thakur, Vancouver Family Lawyer
Marriage-like relationships, sometimes referred to as common-law relationships, are becoming more common in British Columbia.
Since the law recognizes these relationships as having the same legal status as marriages, what does this mean for couples who are living together but are not married?
Unmarried partners can become spouses under the BC Family Law Act if they live together in a marriage-like relationship for a continuous period of two years of more. If they do so, they are entitled to the same property rights as married spouses.
Under section 3 of the Family Law Act, if you are married to another person or have lived with someone in a relationship similar to marriage, you may be spouses. To be considered as such, you and your partner must have lived together continuously for at least two years. However, if you have a child together, the two-year requirement may not be necessary for certain matters like child support or spousal support.
There are two major factors within the definition under section 3, which must be satisfied to meet the definition of spouse for unmarried partners:
- the relationship must be “marriage-like” and
- the parties must be “living together” for a continuous period of at least two years.
What are the Legal Rights and Responsibilities of Marriage-like Relationships?
In BC, couples in marriage-like relationships have many of the same legal rights and responsibilities as married couples. These include:
- Property Rights: In a marriage-like relationship, each partner has an equal right to property that was acquired during the relationship. This includes property that was purchased jointly, as well as property that was acquired individually but used for the benefit of the relationship.
- Spousal Support: If the relationship ends, one partner may be entitled to spousal support from the other, depending on factors such as the length of the relationship, the income of each partner, and the contributions made to the relationship.
- Child Support: If the couple has children together, each partner has a legal obligation to provide financial support for their children.
- Pension Benefits: In some cases, a partner in a marriage-like relationship may be entitled to receive pension benefits from the other partner if they separate.
- Immigration Rights: In some cases, a partner in a marriage-like relationship may be able to sponsor their partner for immigration purposes.
Factors in Assessing a Marriage-like Relationship
In order to determine whether or not a relationship is “marriage-like”, courts rely heavily on the list of factors outlined in the case of Molodowich v. Penttinen, [1980] O.J. No. 1904 (Dist. Ct.). In that case, the court lists seven categories of factors that might point to the existence of a marriage-like relationship:
(1) Shelter
- Did the parties live under the same roof?
- What were the sleeping arrangements?
- Did anyone else occupy or share the available accommodation?
(2) Sexual and Personal Behaviour
- Did the parties have sexual relations? If not, why not?
- Did they maintain an attitude of fidelity to each other?
- What were their feelings towards each other?
- Did they communicate on a personal level?
- Did they eat their meals together?
- What, if anything, did they do to assist each other with problems or during illness?
- Did they buy gifts for each other on special occasions?
(3) Services
What was the conduct and habit of the parties in relation to:
- preparation of meals
- washing and mending clothes
- shopping
- household maintenance
- any other domestic services
(4) Social
- Did they participate together or separately in neighbourhood and community activities?
- What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?
(5) Societal
- What was the attitude and conduct of the community toward each of them and as a couple?
(6) Support (economic)
- What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?
- What were the arrangements concerning the acquisition and ownership of property?
- Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) Children:
- What was the attitude and conduct of the parties concerning children?
In H.S.S. v. S.H.D., 2016 BCSC 1300 at para. 49, rev’d on other grounds, 2018 BCCA 199, Justice Dardi outlined the following factors which informed her analysis of whether the parties were living as spouses:
- Whether they vacationed together
- The presence or absence of marital relations
- How they conducted their financial affairs, including any financial planning they undertook as a couple and how they filed their tax returns
- Estate planning
- Making shared plans for the future
- Participation in joint social activities and the manner in which the spouses presented themselves to others
In Lariviere v. Coad, 2019 BCSC 1691, at para. 191, Justice Walker set out another helpful summary of the factors that the courts may utilize:
- The parties’ intentions, particularly their expectation of whether the relationship would be lengthy and of indeterminate duration
- Objective evidence of the parties’ lifestyle and interactions supporting a finding that their interactions “closely resembled those typical of married couples”
- Whether the parties treat themselves as a family unit
- Whether cohabitation was coupled with romantic and sexual relations
- Evidence of emotional interdependence, mutual commitment, and attachment
- Whether the parties co-mingled assets and shared expenses
- Whether the parties treated themselves as single or cohabiting for income tax purposes
In Austin v Georz, 2007 BCCA 586, at paragraph 52, the court stated that financial dependence is not a requirement as modern marriage is often a marriage between equals.
In Dey v. Blackett, 2018 BCSC 244, citing Austin v. Goerz, 2007 BCCA 586, the court held that the “determination of whether a relationship was marriage-like requires a ‘holistic approach’, in which all the relevant factors are considered and weighed, but none of them are treated as being determinative of the question”.
The Parties’ Intention
In the case of Weber v. Leclerc, 2015 BCSC 650 at para. 12, affirmed by the Court of Appeal in 2015 BCCA 492, leave to appeal to the Supreme Court of Canada was refused as the court found while the parties’ intentions are relevant, intentions are not the sole determinative factor. How the parties behaved and what they did together will be looked at holistically in order to assess relationship status. At paragraphs 23 and 24 of Weber, the court states:
[23] The parties’ intentions—particularly the expectation that the relationship will be of lengthy, indeterminate duration—may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.
[24] The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.
As Justice Schultes said in Dey:
[235] … While an intention to enter into a relationship similar to marriage – of an indeterminate, lengthy duration – is the essential requirement for finding a marriage-like relationship, a consideration of objective indicators are helpful as a means of testing the parties' professed intentions (or lack of intentions) in that regard, and may also form the basis of inferences as to what their intentions were. Put another way, while intention is the key, a partner who claims or disavows such an intention may not be believed if all of the surrounding circumstances strongly imply the contrary.
The Cohabitation Requirement
The cohabitation requirement is understood flexibly. It is possible for this requirement to be satisfied even though the parties lived, for an extended period of time, under different roofs; Thompson v. Floyd, 2001 BCCA 78 at paras. 22-36; Coupar v. Roh, 2014 BCSC 1392 at paras. 67-80.
In Weber at para. 11, the court stated that something more than cohabitation is required such that “[t]he cohabitation must be in a relationship that is similar to typical married relationships”. At para. 17, Justice Groberman attributed to Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 (B.C.C.A.) the proposition that the key question is whether the couple saw their relationship as one of indeterminate, lengthy duration.
If you are considering living with someone or are already living with someone with whom you are in a romantic relationship and have questions about your legal rights and responsibilities, you should seek professional legal advice. Retaining a family lawyer to draft a cohabitation agreement to define your legal rights and responsibilities towards your partner will save you the costs associated with litigating over your entitlements upon relationship breakdown. The family lawyers at Crossroads Lawyer are experienced with matters of marriage-like relationships from drafting cohabitation agreements to dealing with the aftermath of a relationship breakdown. Our team of mediators are also available to help if you are looking for a cost-effective and flexible way to settle your matter that is far less stressful than going to court. Call or book online today for your free 20-minute consultation.
