Common Law vs Marriage in BC and What Is Actually Different

In British Columbia, a common law spouse and a married spouse have the same rights to family property, family debt and spousal support under the Family Law Act. What actually changes is how you become a spouse, how the relationship ends, which statute applies, and when the deadlines run.

The myth that unmarried couples have no rights in BC is persistent and wrong. So is the opposite myth, that after two years nothing is different at all. SiLaw Group Family Lawyers sees both assumptions cause problems in our common law work, so here is the comparison, point by point, against the current text of the Act.

What Is the Same for Common Law and Married Spouses?

Section 3(1) of the Family Law Act defines a spouse as a person who is married to another person, or who has lived with another person in a marriage-like relationship for a continuous period of at least two years. From there the Act does not run two systems. The same Part 5 governs property and debt for both, and the same Part 7 governs spousal support.

Property. Under section 81 of the Family Law Act, spouses are both entitled to family property and responsible for family debt regardless of their respective use or contribution, and on separation each has a right to an undivided half interest in all family property as a tenant in common. Section 84 of the Act defines family property, section 85 defines excluded property, and section 86 defines family debt, in identical terms for married and unmarried spouses. Our common law property rights page walks through them.

Spousal support. Part 7 of the Family Law Act applies to spouses, full stop. The objectives in section 161 and the factors in section 162 of the Act, including the length of time the spouses lived together and the functions each performed, are the same whichever route made you a spouse. Our spousal support entitlement page explains how entitlement is assessed.

Children. Parenting arrangements and child support never depended on marriage. Section 147(1) of the Family Law Act places the duty to support a child on each parent and guardian. Our parenting and child support pages apply to every parent.

Agreements. Section 92 of the Family Law Act lets spouses make their own agreements about property and debt, and section 93 governs when a court may set one aside. A cohabitation agreement and a marriage agreement are the same legal creature under those sections. Our family law agreements page covers both.

How Do You Become a Spouse?

This is the first real difference. A married person is a spouse under section 3(1)(a) of the Family Law Act from the date of the marriage. An unmarried partner must reach a continuous period of at least two years of living together in a marriage-like relationship under section 3(1)(b)(i) of the Act, or have a child with the other person under section 3(1)(b)(ii), and the child route does not count for property or pension division. Our two-year rule page covers that threshold.

The practical consequence is that an unmarried couple can live together for 23 months, separate, and have no property claim under the Act at all, where a couple married for 23 months would divide family property equally. Short unmarried relationships are instead left to claims the courts developed outside the Act, which our unjust enrichment page describes in general terms. One detail cuts the other way: under section 3(3) of the Family Law Act, a relationship begins on the earlier of cohabitation and marriage, so three years of living together before a wedding count.

How Does the Relationship End?

Married spouses need a court order to end the marriage. A divorce under section 8(1) of the Divorce Act is granted on the ground that there has been a breakdown of the marriage, and under section 8(2)(a) of the same Act that breakdown is established if the spouses have lived separate and apart for at least one year. Our divorce in BC guide covers the process from separation to final order, and our uncontested divorce page covers the paperwork route.

Unmarried spouses file nothing. The relationship ends when they separate, and section 3(4) of the Family Law Act confirms that spouses may be separated despite continuing to live in the same residence. There is no common law divorce in British Columbia because there is no marriage to dissolve. Our common law separation page explains what still has to be resolved.