Common law rights under the BC Family Law Act essentially mean that you are treated as a married couple. This means that gay and lesbian common law partners or people in relationships for several years but not yet married, have the very same rights as married couples. This wasn’t the case before. For example, before 2013 if you were not married and you wanted 50% of your partner’s property upon separation, you needed to apply under different laws which didn’t necessarily guarantee you the same rights and chances of winning you have today. Let’s look at your rights today:
Common Law Rights for Property and Debt Division
- You will generally obtain 50% of the appreciation of family property. This is property which was acquired during your relationship or appreciated in value during your relationship. So let’s say you had a house worth $200,000 when you started cohabitation and at the time of separation, it is now worth $1,000,000. You will get your $200,000 back plus 50% of the appreciated value. That means you will obtain $600,000 and your spouse will obtain $400,000.
- You and your common law spouse will generally be responsible for 50% of any debts accumulated during the cohabitation. So if you took out student loans during the cohabitation and at the time of separation it stood at $20,000, you and your ex-spouse will likely each be responsible for 50% of same, meaning $10,000 each.
Common Law Rights for Spousal Support
- Spousal support is generally decided under the Spousal Support Advisory Guidelines. For more information on temporary spousal support, click here, and for permanent spousal support, click here.
- You can more or less determine your spousal support entitlement by clicking here and doing a calculation. Spousal support is mainly based on differences in your net incomes, the length of your cohabitation and whether there are children involved.
Common Law Rights for Child Support
- Child Support is based on your gross incomes and whether the child’s parenting is being shared or whether you or your spouse have primary residence of your child. Shared parenting means each of you and your spouse having the child in your care more than 40% of the time. Primary residence means you or your spouse have the child in care more than 60% of the time.
- Once again, you can click here to determine child support.
Common Law Rights for Parenting Time with the Child or Guardianship
- Whether you are married or common law, you can rely on the Family Law Act to ask for parenting time with your child. Note that under Divorce Act, which doesn’t apply to common law couples, ‘parenting time’ is called ‘custody’ and ‘contact’ is called ‘access’.
- Section 37 of the Family Law provides for how a judge should determine parenting time and parental responsibilities for your child:
Best interests of child
(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the nature and strength of the relationships between the child and significant persons in the child’s life;
- the history of the child’s care;
- the child’s need for stability, given the child’s age and stage of development;
- the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
- the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
- whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
- the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
- any civil or criminal proceeding relevant to the child’s safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
There are other issues relating to common law spouses which require more time and detail and the best way to find out about your full rights is to consult with a BC family lawyer. Our award winning law firm can help. Call us at 604-974-9529 or email email@example.com for more information.