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What Does it Mean to be a Common-Law Spouse?

Virginia Richards

Written by: Virginia Richards (View All Posts • View Bio ) Published: September 14, 2016
Categorized: Common Law, Family Law, Separation.

What does it mean to be a “common-law spouse”?

More than ever couples are living together before marriage, and after a certain period of time, we tend to say that they are “common-law spouses”.  But what does it mean to be “common-law” with someone?  How long does it take to be common-law spouses with your partner?

First, the term “common law spouse” is a misnomer.  What regular folks tend to mean by it is that two people are living together in a marriage-like relationship, in a way that has legal consequences, but they are not married.  However, the Common Law in Canada (which is the law developed over time by judges deciding cases,) does not actually put any legal significance on two people in a relationship living together.  Rather, it’s legislation (laws passed by our elected representatives) that determines whether unmarried partners are “spouses” by law.

In Canada, there are various laws that have different tests for common-law spouses.  The tests differ across the provinces and according to area of law.  For example, the length of time you need to cohabit before you are a spouse is different in Ontario and British Columbia, and the test for common-law spouses is different in the income tax context than the family law context.

In British Columbia, pursuant to section 3 of the Family Law Act, you are considered a common-law spouse for the purposes of entitlement to spousal support, property division, and pension division if you have lived together in a marriage-like relationship for at least two years.  However, if you have lived with a person in a marriage-like relationship for less than two years, but you have a child together, then you are considered a common-law spouse for the purpose of spousal support but not property and pension division.  If you are cohabiting with someone, but the relationship isn’t “marriage-like”, then you aren’t spouses and there is no entitlement to spousal support or property and pension division.

Whether a relationship is marriage-like is a surprisingly complicated question, and it depends on the individual facts of each case.  If you have questions about whether you are in a marriage-like relationship, and the legal consequences arising from it, the best thing to do is to have a consultation with a family lawyer.

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