One of our episodes next season will be on the topic of “Breaking Up” and will address the law that governs what happens after the end of a marriage or common law relationship. The following is an overview of the topic.
When a marriage or a common law relationship is ending, both parties carry certain legal rights and obligations that assist in governing the family law issues that can arise in these cases. Particular rules and guidelines established in provincial and federal legislation try to enforce fair and equitable solutions to difficult issues that may arise out of such cases, such as determining child custody or spousal support.
It is important to note that the law in this area can be complex, particularly regarding the division of family assets, and it is generally difficult to proceed without seeking legal advice even if attempting to reach an agreement outside of a trial.
In British Columbia, the law governing divorce, separation, and the dissolution of common law relationships is comprised of two statutes: the provincial Family Relations Act and the federal Divorce Act. Typically, the issues that might arise in the case of divorce or the ending of a common law relationship are the division of family property, spousal support, child support and child custody. These issues are governed by the two statutes noted above.
Though Canadian law considers common law relationships and marriages differently, when the relationship ends common law partners carry many of the same rights and obligations that married people do when facing a divorce with some note-worthy exceptions.
An important area where common law relationships differ from marriages is in the division of family assets after the end of the partnership.
The Division of Family Assets
The division of family assets after a divorce is governed by the Family Relations Act. A family asset is defined as property “ordinarily used for a family purpose”, which focuses on how the property was used as opposed to the original purchaser or owner. Typical family assets are things like the family home and family car.
As a general rule, the law dictates an equal, 50/50 division of family assets. Though exceptions may exist in extenuating circumstances, there is a strong presumption for equal division. Pre-nuptial agreements or consent orders can stipulate an unequal division of assets in the case of a divorce, though the courts can find even these to be unfair if circumstances significantly change.
Property rights are different for those in common law relationships, and if the relationship ends, there is no automatic right to an equal division of property unless a cohabitation agreement was previously signed. Instead, partners typically each take the assets in their own names, sharing equal interest only in assets owned together. If one partner contributed to the purchase of another’s asset, they may claim for an interest of it but they will have to prove that this contribution did not constitute a gift. If dividing property in this fashion will result in a greatly unfair result, the partner who was treated unfairly can attempt to make a claim for an unjust enrichment but the process is difficult and expensive.
Spousal Support, Child Support and Child Custody
Under the Family Relations Act, both married and common-law couples can apply for spousal support in the case of a divorce. Spousal support is money paid by one partner to assist the other partner to meet their financial needs after the relationship ends. In order to apply for spousal support, common law partners must have been living together as a couple for at least two years and apply for the support within one year after separation. There is no similar time limit on married couples to file for spousal support.
Child support is payable by anyone who is a biological or adoptive parent, regardless of their relationship with the other parent. Child support is money paid by one parent to the other for the financial well-being of the child. Typically, the parent who has the child in their care less will pay child support to the parent who has the child more of the time.
The law governing child custody is again the same for both married and common-law couples. In deciding custody, the court always seeks to act in the best interests of the child. Different forms of custody arrangements include shared custody, sole custody, and split custody. Custody includes a consideration of both living arrangements for the child as well as how to decide which parent may make major decisions regarding the child.
Legal Approaches to Addressing these Issues
There are typically three legal approaches to addressing these issues. First, both partners can sign a separation agreement, which will dictate the terms of the separation in regards to the above issues and is legally binding if filed with the court. Secondly, partners can pursue non-court dispute resolution alternatives such as mediation or negotiation to come to an agreement. These can take place with or without lawyers. Lastly, and most infrequently, partners can take each other to court to have a judge rule in the case of a contested divorce. This is generally a time-consuming, expensive option and can put additional stress on the parties involved.