Common-Law in BC: How Long It Takes, How to "Declare" It and What Changes

People search for how to declare common-law status in BC as if there were an application to file. There is not. You become a spouse by living together in a marriage-like relationship for long enough, whether or not you ever tell anyone.

How long is long enough depends on who is asking. Family law, estate law, the Canada Revenue Agency and immigration each apply their own test, and the same couple can be common-law under one and not yet under another.

The short answer

For most purposes in BC, the number is two years. Under section 3 of the Family Law Act, you are a spouse once you have lived with another person in a marriage-like relationship for a continuous period of at least two years. From then on, the property and debt rules that apply to married couples apply to you too.

Two shorter routes exist. If you live together in a marriage-like relationship and have a child together, you are spouses for spousal support without waiting two years, though not for property or pension division. And the Canada Revenue Agency treats you as common-law partners after 12 continuous months.

How long until you are common-law? Four clocks

• Family law: two years. Two continuous years in a marriage-like relationship make you spouses for property division, pension division and spousal support. Our guide to how BC courts decide whether a relationship is marriage-like explains what counts when a couple disagrees.
• Wills and estates: two years. Under section 2 of the Wills, Estates and Succession Act, partners who lived together in a marriage-like relationship for at least two years are spouses when one of them dies. Having a child together does not shorten that.
• Income tax: 12 months. The CRA treats you as living common-law once you have lived together in a conjugal relationship for at least 12 continuous months, or as soon as you live together if your partner is the parent of your child.
• Immigration: 12 months. For sponsorship, Immigration, Refugees and Citizenship Canada looks for at least 12 consecutive months of living together.

So the same couple can be common-law for the CRA a full year before they are spouses under BC family law.

How do you "declare" common-law status in BC?

You do not. Nothing in the Family Law Act asks you to register, apply or sign anything. Section 3 makes you a spouse because of how you have lived, and it treats the relationship as beginning on the day you started living together in a marriage-like relationship.

What people usually mean by declaring is one of three things, each with its own rule:

• Telling the CRA. Once you meet the tax definition, you must update your marital status by the end of the month after the month it changed. You can do it in your CRA account, by phone, or by sending Form RC65. Your status affects benefit and credit payments, because they are based on family net income.
• A statutory declaration for immigration. Some immigration applications use Form IMM 5409, Statutory Declaration of Common-Law Union. Both partners state how long they have lived together and sign in front of a notary public or a commissioner for taking affidavits. See who can commission an affidavit in BC.
• An employer, insurer or pension plan. Benefit and pension plans use their own definitions and their own forms. Read the plan's wording before assuming its waiting period matches any of the four above.

Be consistent. What you tell the CRA, a benefits plan or an immigration officer can be put in front of a family court later if the two of you disagree about when the relationship began.

What changes once you are spouses

• Property and debt. Unless you have agreed otherwise, on separation each spouse has a right to an undivided half interest in family property and is equally responsible for family debt. Property you owned before the relationship began is generally excluded, but the amount by which it grew in value during the relationship is shared. Our guide to what separation means for your property works through it.
• Spousal support. A spouse may be entitled to support after separation. It is not automatic: entitlement turns on the objectives in the Act, such as the economic advantages and disadvantages arising from the relationship. See spousal support after a common-law relationship.
• A deadline. Unmarried spouses must start a court claim for property division, pension division or spousal support no later than two years after the date they separated. The clock pauses while you are in family dispute resolution with a family dispute resolution professional.
• Inheritance. If your partner dies without a will, a surviving spouse is entitled to all or a share of the estate, and a spouse left out of a will can ask the court to vary it.
• Children. Child support does not depend on any of this. Each parent has a duty to support their child, whether or not the parents ever lived together.

When common-law status ends

Separation ends it, and no court document is needed. Under section 3, spouses can be separated while still living in the same home, and a court may treat one spouse's statement of an intention to separate permanently, or an action that shows it, as evidence of separation. For estates, unmarried partners stop being spouses when one or both of them end the relationship. For tax, the CRA treats you as separated once you have lived apart for at least 90 days because of a breakdown in the relationship.

The date matters, because the two-year deadline runs from it. Our guide to working out your date of separation explains how it is fixed when you disagree.

When it is worth getting advice

Nobody needs a lawyer to become common-law. The moments when advice matters are these:

• Before or soon after you move in together, if one of you owns a home, a business or significant savings. A cohabitation agreement records what stays separate and what is shared, while you still agree about it.
• Before the two-year mark. It is a natural point to decide whether the default rules suit you both. You can still make an agreement afterwards.
• When you have separated. The two-year limit on property and support claims is already running. See family law deadlines in BC.
• When neither of you has a will. A partner of less than two years is not a spouse under the estates Act, so the rules for dying without a will do not provide for them. See why common-law couples in BC still need a will.

Living together in BC? Put your arrangement in writing while you agree

Our family lawyers can advise you on whether and when you became spouses, prepare a cohabitation agreement that sets out what stays separate, and act for you on property and support if you have separated.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.