This may seem like a no-brainer – you are either married or you are not – but in British Columbia the definition of “spouse” is quite broad. Why does this matter to you? The status of your relationship has important legal implications, particularly with respect to real property, assets and the issue of spousal support/maintenance. On November 23, 2011, a new family law bill was passed in the British Columbia legislature. The Family Law Act came fully into force on March 18, 2013, and replaced the Family Relations Act. The Family Law Act definition of spouse includes the following: A person is a spouse for the purposes of this Act if the person a) is married to another person, or b) has lived with another person in a marriage-like relationship, and
- has done so for a continuous period of at least 2 years, or
- except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
On September 24, 2009, the Wills, Estates and Succession Act (WESA), was introduced by the British Columbia government. It came into force on March 31, 2014, and replaced a number of acts, including the Estate Administration Act, Wills Act and Wills Variation Act. The WESA definition of spouse includes the following: Two persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
- they were married to each other, or
- they had lived with each other in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least two years.
In a nut shell, you do not have to be married to be a spouse; rather, being in a “marriage-like” relationship for at least two years is sufficient. There is no standard test or definition of what constitutes a “marriage-like” relationship and there is no checklist of characteristics that will be found in all marriages. Spousal relationships are many and varied. Accordingly, the approach taken by the courts has been flexible. The question of whether parties have lived or are living in a “marriage-like” relationship is largely fact-driven and depends on the individual circumstances of each case. The following factors have been taken as indicia of living together in a “marriage-like” relationship:
- Did the parties live under the same roof?
- What were the sleeping arrangements?
- Did anyone else occupy or share the available accommodations?
Sexual and Personal Behavior
- 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?
Services: What was the conduct and habit of the parties in relation to:
- preparation of meals;
- washing and mending clothes;
- household maintenance; and
- any other domestic services?
- Did they participate together or separately in neighborhood 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?
- What was the attitude and conduct of the community toward each of them and as a couple?
- 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?
- What was the attitude and conduct of the parties concerning children?
The foregoing are questions and/or factors which a judge will consider as a whole in determining whether a couple is living or has lived together in a “marriage-like” relationship. The absence of some of these factors will not preclude a judge from finding that a couple is in a “marriage-like” relationship. For example, couples owning separate residences have been found to be living in a “marriage-like” relationship. Your relationship status can impact your property and maintenance rights, especially in the event of a separation or death. If you are uncertain about the status of your relationship, are contemplating a separation or are in need of estate planning advice, you should contact a family law or wills and estates lawyer for further information.
Trusts and Estate Law
Lindsay Kenney LLP
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.