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Not living with your partner? You could still be spouses with rights and obligations under family law

January 1, 2021
Blog, Family Law, Marriage-like relationship, Spouses, Uncategorized
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If you are spouses, then family property divisions, family debt division and spousal support laws apply to you.

As discussed in my previous post which can be found here, unmarried couples must live in a “marriage-like” relationship for a period of at least two continuous years to be considered “spouses” under the Family Law Act which applies to all family law matters in Vancouver and other parts of BC.

It is important to know that you may not have to live in the same physical residence on a full-time basis to be considered “spouses.”

For example, in the recent Ontario case of Climans v. Latner, the court found that a man and his girlfriend were “common law” even though they did not live together and had no children.

In this case, although they lived separately, the couple held themselves out as spouses to family, friends, and the public, they holidayed together, and she left her job to travel with him and often slept over at his house. They kept separate bank and never owned property together. However, the man provided the woman with a credit card, paid off her mortgage, and showered her with gifts.

The man proposed to the woman several times and insisted she sign a prenuptial agreement before they married, but she refused.

The court held that “cohabitation” can occur even when the parties don’t cohabitate all of the time. The man was ordered to pay spousal support to his former girlfriend.

Although Climans v. Latner is an Ontario case, BC courts have also held in the past that a couple does not necessarily need to live together full time in the same residence to be “spouses.” Further, the Ontario Court of Appeal is influential in BC, so we won’t be surprised if a BC court makes a decision in line with Climans v. Latner in the future.

But how can two people live in a “marriage-like” relationship while maintaining separate residences?

The modern conception of relationships is a lot different than it was in times past.

Spousal relationships run the gamut these days, from more traditional relationships to those that break the mold on what we think such relationships should look like.

Modern spousal can include relationships where the parties don’t physically live together full-time, but they share their lives in some meaningful way. For example, the following are some considerations that a court may look at, as listed in a well-known case:

  1. Sexual and Personal Behaviour:

(a)   Does the couple have sexual relations? If not, why not?

(b)   Do they maintain an attitude of fidelity to each other?

(c)   What are their feelings toward each other?

(d)   Do they communicate on a personal level?

(e)   Do they eat their meals together?

(f)    What, if anything, do they do to assist each other with problems or during illness?

(g)   Do they buy gifts for each other on special occasions?

  1. Services:

What is the conduct and habit of the couple in relation to:

(a)   preparation of meals;

(b)   washing and mending clothes;

(c)   shopping;

(d)   household maintenance; and

(e)   any other domestic services?

  1. Social:

(a)   Do they participate together or separately in neighbourhood and community activities?

(b)   What is the relationship and conduct of each of them toward members of their respective families and how do such families behave towards the parties?

  1. Societal:

What is the attitude and conduct of the community toward each of them and as a couple?

  1. Support (economic):

(a)   What are the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b)   What are the arrangements concerning the acquisition and ownership of property?

(c)   Are there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

  1. Children:

What was the attitude and conduct of the parties concerning children?

These attributes are not requirements but merely some of the characteristics we see in relationships that have been deemed by the courts to be spouses living in “marriage-like relationships” and these factors may be present in varying degrees. For example, in some marriage-like relationships, there is a blending of finances and property while, in others, spouses keep their property and finances totally separate. Although a party may subjectively believe that he or she is not in a marriage-like relationship, the reality may be otherwise.

For example, a couple may not live together fulltime, but they may:

  • frequently stay at each other’s residences
  • represent to third parties that they are a couple
  • celebrate holidays and vacation together
  • have children and pets together
  • share finances and property

To further complicate matters, couples often disagree about the date they began living as spouses, as often there is a gradual transition of spending increasingly more time together. Think about this: will a couple have commenced living together in a “marriage-like relationship” if each of them maintains separate residences but spends several nights a week with each other? This is a tricky question that cannot be answered generally and must be answered on a case-by-case basis.

The important take away is that even if you and your partner are not living in the same residence, or are only live together part-time, the Family Law Act provisions for family property division and spousal support may apply to you. This is why it is imperative to enter into a cohabitation/ prenuptial agreement prior to moving in with your partner, especially in the case of relationships where you have been “dating” for an extended period of time. For more information about when you may wish to enter into a cohabitation/ prenuptial agreement to protect your property, click here.

It is important to speak to a family law lawyer from the outset as to whether or not you and your partner are in a “marriage-like relationship” and therefore subject to family division property and family debt division laws. If you have further questions, please contact me by clicking here.

Stay tuned for my next post where I discuss family property law and how to protect your rights.

NOT LEGAL ADVICE. Information made available on this website is for information purposes only and is not legal advice. Do not rely on this information, nor take or fail to take any action, based upon this information. Do not disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Contact me here to discuss any specific legal issues.

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