Spousal Support After a Common-Law Relationship in BC

If you lived with a partner without marrying, you may be wondering whether either of you owes the other support now that it is over. In British Columbia the answer can be yes, even after a relatively short relationship, but the rules about who counts as a spouse and when you must act are strict.

This guide focuses on what is different for common-law, or unmarried, partners: qualifying as a spouse, the separate rule for couples with a child, the deadline that runs from separation, and how the length of your relationship shapes any support.

Do you count as a spouse?

Spousal support under BC's Family Law Act is only available between spouses. Under section 3, a married person is a spouse. An unmarried person is a spouse if they lived with the other person in a marriage-like relationship and either:

• lived together for a continuous period of at least two years, or
• had a child together, even if the relationship was shorter than two years.

A former spouse is still a spouse for these purposes, which is what allows a claim after the relationship ends. Whether a relationship was marriage-like is a question of fact. Courts look at the whole picture, such as shared finances, living arrangements, how you presented yourselves and how you treated each other. Our guide to the marriage-like relationship test explains the factors.

Under two years with a child

The child rule is easy to misread. Under section 3, partners who had a child together are spouses for most of the Act, but not for Part 5 (property division) or Part 6 (pension division). In practice, that means a couple who lived together for less than two years and have a child may have spousal support claims against each other, but the property and pension division rules for spouses do not apply between them.

Child support is a separate obligation. It depends on being a parent, not on being a spouse, and it has priority: under section 173, any duty to pay child support must be given priority when spousal support is set.

Qualifying is not the same as being entitled

Being a spouse only opens the door. Under sections 160 and 161, a spouse is entitled to support only after considering the objectives the Act sets out, which include:

• recognizing economic advantages or disadvantages arising from the relationship or its breakdown;
• sharing the financial consequences of caring for a child, beyond child support;
• relieving economic hardship caused by the breakdown; and
• as far as practicable, promoting each spouse's economic self-sufficiency within a reasonable time.

A partner who gave up work or moved for the relationship, or who now carries most of the childcare, may have a stronger claim than one whose finances simply differ. Under section 166, misconduct is generally not a factor, except conduct that unreasonably causes or prolongs the need for support or affects the ability to pay.

How length of relationship affects amount and duration

Under section 162, amount and duration depend on each spouse's circumstances, including how long you lived together and the roles each of you played. Lawyers and courts in BC commonly use the federal Spousal Support Advisory Guidelines to estimate ranges. The guidelines are advisory, not law, and they measure the relationship by the period of cohabitation, which is one reason they can be used for unmarried couples under provincial law.

Where there is no child support being paid, the guidelines' formula produces a range of 1.5 to 2 percent of the difference in gross incomes for each year you lived together, up to 50 percent, and a duration of half a year to one year for each year together. For example, on the guidelines' own arithmetic, a four-year relationship would produce a range of 6 to 8 percent of the income difference for two to four years. Longer relationships can lead to indefinite support, and short ones without children usually produce modest awards. Where child support is being paid, a different formula applies. Our spousal support guide walks through both formulas.

The two-year deadline runs from separation

For married spouses, the deadline to claim spousal support under the Family Law Act runs from the divorce order. For unmarried spouses, section 198 says a proceeding for spousal support must be started no later than two years after the date you separated. Miss it and you may lose the claim.

• Separation can happen under one roof. Section 3 allows spouses to be separated while still living in the same home, so the clock may have started earlier than you think. See our article on the date of separation.
• Some processes pause the clock. The time limit is suspended while you are in family dispute resolution with a family dispute resolution professional, such as a mediator, or another prescribed process. Informal talks between the two of you are not the same thing.
• Agreements have their own timing. A challenge to a written agreement about spousal support has a separate two-year period that runs from when the grounds were discovered, or reasonably ought to have been.

Agreements between unmarried partners

You can settle support by agreement. Under section 163, an agreement can set amount and duration, say when support will change or end, or release a claim entirely. A written agreement with each signature witnessed can be set aside under section 164 only in limited situations, such as a failure to disclose income, property or debts, taking improper advantage of the other person, or significant unfairness on the factors the section lists. Full financial disclosure and independent legal advice for each partner make an agreement much harder to challenge later.

Separated from a common-law partner? Get advice before the two years run out

Our family lawyers can assess whether you qualify as spouses, work out the date of separation and the deadline that follows, estimate the likely support ranges, and help you negotiate an agreement or bring or respond to a claim.

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