Introduction: Family law deals with one of the most important aspects in our lives. Once a family law issue arises, the situation is often difficult to navigate. Especially for many immigrants, the lack of familiarity with the Canadian society and the legal system can add to the challenges. In addition, when people do their own research on family law, it is hard to get a full picture, and misunderstanding is not uncommon. Therefore, clarification of common "myths" about what the law actually says is self-evidently important for handling family law matters and protecting one's own interests. Henderson & Lee Law Corporation is producing a series of introductive articles to debunk some common myths we discovered while serving our clients.
Myth 1: My partner and I are in a "common law" relationship
Reality:
This belief is not technically wrong. But it is important to note that "common-law relationship" is not a legal term under the Family Law Act of BC ("FLA"). In BC, there are only married or unmarried spouses, both protected equally under FLA.
Common-law relationship, on the other hand, is a term more often used by the federal government and usually not in the family law context. While there can be a large overlap between couples who are "common-law partners" and "unmarried spouses", their definitions are different and are determined differently. If you have a relevant family law issue, make sure to look for the correct legal authorities.
Myth 2: As long as you live together for two years, you are considered spouses
Reality:
Under FLA, when two unmarried persons have lived together (or "cohabited", which is not a legal term either) for two years, they may be considered unmarried spouses (since the beginning of their relationship). However, in order to meet that threshold, they cannot be simply cohabiting but must have been living together in a "marriage-like relationship" for more than two years. Whether their relationship is "marriage-like" depends on the unique facts of each case. In most scenarios, any single factor is not by itself determinative. Generally, the expectation for a "marriage-like relationship" includes a high level of interdependence and mutual support. In other words, even if the two parties are living under the same roof under a romantic relationship, they may still not be deems as "spouses" if they are living very independent lives.
One exception is for couples who have not lived together in a "marriage-like relationship" for two years but have a child with each other. They can still be spouses other than for the purpose of property division (that is to say, when their relationship ends, they may be able to ask for child and spousal support, but will not have any entitlement to the other's property only because of that relationship).
Myth 3: Separation requires one party to move out of the family residence
Reality:
As mentioned above, a single factor, including whether two individuals are living under the same roof, is usually not determinative for recognizing a marriage-like relationship. Similarly, when it comes to separation, whether they are still living under the same roof may not be determinative either. Especially in Canada, many residences have plenty of room and facilities for two estranged spouses to live separately at the same residence - for example, one person lives upstairs and the other lives downstairs, each with independent access. Therefore, separation does not necessarily mean that one party has to move out.
But that does not mean living in separate rooms is sufficient for a separation. A judge figuring out whether two people have separated may also look at their daily life as a whole.
Compared to marriage, cohabitation seems to be a more "flexible" arrangement. However, the flip side of this "flexibility" is uncertainty in the determination of the spousal relationship and applicable legal rights. If you are about to start, adjust, or end a relationship, you should consider consulting a lawyer first to avoid unnecessary legal risks and consequences.
Author: Jonathan Li
 | Jonathan Li specializes in civil and family cases, representing clients in handling simple to complex civil and family disputes. His services include litigation and solicitor's work. He has experience in cooperating with partners of the firm and many other lawyers in various fields of law in different cases. |