The Two-Year Deadline for Common Law Property Claims in BC

In British Columbia, an unmarried spouse must start a court proceeding for property division, pension division or spousal support no later than two years after the date of separation. That is section 198(2)(b) of the Family Law Act, and it bites common law couples far sooner than married ones.

SiLaw Group Family Lawyers treats this deadline as the first thing to fix on every common law file, before the property inventory and before any negotiation. Here is how the rule works, why it lands earlier for unmarried spouses, what pauses it, and what to do if you are close to it. Our common law property rights page covers the rights the deadline protects.

What Does Section 198 Actually Say?

Section 198(1) of the Family Law Act starts from the position that, subject to the Act, a proceeding may be started at any time. Section 198(2) of the Act then carves out the exception. A spouse may start a proceeding for an order under Part 5 to divide property or family debt, under Part 6 to divide a pension, or under Part 7 for spousal support, no later than two years after:

• for spouses who were married, the date a judgment granting a divorce is made or an order is made declaring the marriage a nullity, or
• for spouses who were living in a marriage-like relationship, the date the spouses separated.

Three things fall outside the limit. Child support is not listed, so section 198(1) of the Family Law Act governs and no two-year limit applies. Parenting matters are not listed either. And section 198(4) of the Act keeps reviews of spousal support under sections 168 and 169 outside the limit.

Why Do Unmarried Spouses Hit the Deadline Sooner?

Because of what starts the clock. For a married couple, nothing runs until a divorce judgment is made. A divorce under section 8(1) of the Divorce Act is granted on the ground of breakdown of the marriage, and under section 8(2)(a) of that Act the breakdown is established by living separate and apart for at least one year. A married couple therefore separates, waits at least a year, obtains a divorce, and only then starts counting two years. Married couples who never divorce never start the property clock at all.

For an unmarried couple the clock starts on the date of separation itself. There is no filing, no judgment and no registry entry. Section 3(4) of the Family Law Act says spouses may be separated despite continuing to live in the same residence, and that a court may consider as evidence of separation one spouse communicating to the other an intention to separate permanently, or an action demonstrating that intention. The date is a question of fact, and it can be argued about years later. Our common law separation page explains why we ask clients to record it the day it happens.

Reconciliation attempts complicate the date. For property purposes, section 83(1) of the Family Law Act provides that spouses are not considered to have separated if, within one year after separation, they begin to live together again primarily to reconcile and continue for one or more periods totalling at least 90 days. A lasting reconciliation can move the separation date, and therefore the deadline, later. A short one does not.

What Pauses the Two-Year Clock?

Section 198(5) of the Family Law Act suspends the running of the time limit during any period in which the persons are engaged in family dispute resolution with a family dispute resolution professional, or in a prescribed process. The definition in section 1 of the Act matters here. A family dispute resolution professional includes a family justice counsellor, a parenting coordinator, a lawyer advising a party in relation to a family law dispute, a mediator who meets the requirements set out in the regulations, and an arbitrator who does.

Two cautions follow. First, conversations between the two of you at the kitchen table are not family dispute resolution with a professional, however sincere. Second, the suspension runs only while you are engaged in the process, and when the process ends the clock resumes. Relying on the suspension means documenting when the process began and when it stopped. Our mediation service is one of the processes that qualifies when the mediator meets the regulatory requirements, and we diarize the dates for exactly this reason.