Surprise, you’re married! What BC couples need to know about common-law spouse entitlements

By Heidi Wudrick and Alex Walls

You may be liable for your partner’s debt and not know it. Erez Aloni, a family law expert and associate professor at UBC’s Peter A. Allard School of Law, explains.

Moving in with a significant other can be a wonderful step. But there’s a good chance BC couples may not know the associated legal and financial obligations and entitlements.

And there’s a good reason: the law is opaque, confusing and out of step with modern relationships, says Erez Aloni, a family law expert and associate professor at UBC’s Peter A. Allard School of Law. Aloni conducted a study exploring couples’ knowledge of the law and whether it fit their expectations. “The bottom line is people don’t know about the law; if they do, they don’t understand it, and it isn’t reflecting how couples actually live together.”

‘Til debt do us part: Common-law financial obligations

After two years of living together in a marriage-like relationship, couples in BC automatically take on the financial obligations usually associated with marriage. In other words, you’re automatically considered spouses—colloquially known as “common-law”, under BC’s Family Law Act of 2013—unless you actively opt out.

The Act governs property division and spousal support. Once you’re considered “spouses”, everything accumulated since the day you first began living together as married-like is equally divided upon separation. This includes contributions to retirement savings plans, property (except excluded property), appreciation on property, and debt, including student loans accumulated during the relationship.

But even more confusing is that federal law defines the length of time for a common-law relationship differently (and actually uses the term “common-law”). You’re considered common-law by the federal government after one year of living together in a “conjugal relationship,” for things like taxes, immigration, Old Age Security pension and more. Practically, if a couple has been living together for a year in a conjugal relationship, they should each file as common-law spouses, checking the relevant box on their income tax returns, says Aloni.

There are many consequences for being recognized as common-law, including potentially reducing or terminating one’s eligibility for certain benefits, says Aloni. But if someone fails to declare they are common-law, they are essentially committing fraud, as happened to a couple Aloni interviewed.

The couple had lived together for 1.5 years overseas and decided to move to BC. One partner Googled the length of time required to be considered common-law in Canada, and found the BC definition, so he checked the box on the immigration application form stating he was single. But immigration is governed by federal law. He had unknowingly committed fraud, and his partner was unable to work until this was sorted out, more than a year later.

In BC, couples can opt out of these default financial obligations under provincial law by both parties signing a written agreement, with one witness, about how to divide their assets and debt in the event of a break-up. Essentially, this is a form of prenuptial agreement, says Aloni, except couples can enter into such a contract at any time during their cohabitation, even after they’ve hit the two-year-mark, and they don’t need a lawyer. But there’s a lot of confusion among couples around the law and their obligations.

“The objectives behind the reform were very progressive,” explains Aloni. “The idea was to protect primary caregivers for their investment while in a couple. But when you look at the results, you see something quite conservative: Everybody is married or married by default unless they are wealthy enough to have an incentive, such as owning a property, to seek out legal advice and opt out.” Courts can evaluate such opt-out contracts for fairness, says Aloni, including deciding not to enforce such agreements, thereby overcoming concerns about unequal bargaining power and preventing substantively unfair contracts.

Love and WAR: Committed or just living together?

To work out just how people fare under BC’s rules, Aloni conducted a study with 30 unmarried couples in 2019, exploring why they chose to live together and to what extent they understood the legal implications.

He found 10 couples didn’t know they were considered spouses, and 13 were aware but misunderstood the law, including seven couples where at least one partner thought there was no option to opt out.

Given the law is still in force, Aloni suspects the reality for couples hasn’t changed. “We know that COVID-19 introduced ‘turbo relationships’, where people moved in together at an accelerated pace so as not to be alone during lockdowns, and had less time to be confident about the relationships or to learn about the rules.”

This was a theme repeated in Aloni’s study, where couples moved in together for reasons other than love and commitment. In speaking with couples, Aloni encountered the term WAR—that’s Whistler-Accelerated Relationship. “Apparently, people in Whistler are moving in together so quickly because of the housing affordability problem that there’s an acronym for it.” The couples he spoke with agreed their relationships were “marriage-like,” but their definitions of what that meant varied drastically—from having to wait to watch the next Netflix episode to feelings of love and the expectation of commitment. Regardless of their definitions, half of couples said they didn’t want the law to impose financial obligations. One woman was dismayed to learn she would be liable for her partner’s student loan debt that had accumulated during their relationship if they were to ever break up.

Raising awareness of common-law commitments

So how can we create a better system? While there’s no simple solution to “fixing” the law, the couples Aloni interviewed offered some practical and innovative ideas that could help raise awareness of the issue. For example, rental contracts could include a notice informing signatories of a year-long lease that after living together for two years, couples are considered spouses. Given federal and provincial governments require couples to know the law, another partner suggested couples be sent a letter after two years to let them know, “Surprise, you’re married!”

Aloni suggests the BC government could provide a boilerplate opt-out form for couples wanting a simple solution, as well as a website with clear explanations outlining the law. Another option could be a smartphone app that auto-fills fields to generate an opt-out form easily, he says. So far, no user-friendly, well-organized option that takes all potential considerations into account exists.

Couples who want to opt out aren’t required to get a lawyer, to notarize their document or to register it with any government agency. “If you can afford independent legal advice then of course it’s best to have a lawyer draft a cohabitation agreement, but if you can’t, you need to do your homework.” BC couples can start by reading up, including JP Boyd on Family Law and Legal Aid BC.

But the most important thing, says Aloni, is for couples to have a frank and honest discussion about what their expectations are with their partner. “You might want an opt-out document, or you might not, and that’s okay! Not every couple is the same. It’s important everyone makes a conscious and informed decision so you’re not surprised to find you’re married.”

Heidi Wudrick is the Communications Manager at the Peter A. Allard School of Law. Alex Walls is a Media Relations Specialist with UBC Media Relations. This article was published on February 9, 2023. Feel free to republish the text of this article, but please follow our guidelines for attribution and seek any necessary permissions before doing so. Please note that images are not included in this blanket licence.