MARRIED OR COMMON-LAW – THERE IS A DIFFERENCE

The Supreme Court of Canada recently issued another ruling on the issue of common-law relationships. In Nova Scotia v. Walsh, the Supreme Court of Canada was asked to consider whether provisions in the Nova Scotia Matrimonial Property Act, which make a distinction between formal marriages and common-law relationships, should be ruled unconstitutional because they contravene the right to equality under the Charter of Rights.

We have very similar legislation in B.C., which makes distinctions between married partners and common-law partners when it comes to division of assets. For example:

  • Only married spouses are entitled to the presumption of an equal division of family assets on the breakdown of the marriage.
  • Common law partners can only claim an interest in the other spouse’s property by claiming a constructive trust, in which the partner’s entitlement is based on his or her contribution to the property.
  • A common law partner must apply for spousal support within one year after the end of the relationship. This deadline does not apply to married spouses.

The Supreme Court of Canada ruled that the provisions in the Nova Scotia family law legislation were valid. The court said that the decision to marry is a personal choice that, if undertaken, includes an agreement to undertake the obligations that the family law legislation imposes on married couples. The court noted that many couples have chosen to avoid marriage and the legal consequences that flow from it, and that to ignore the differences between the obligations that married couples have agreed to undertake and that common-law couples have not agreed to undertake is to make presumptions that simply do not exist.

This case confirms that common-law relationships are not the same as being married. There are many differences between the two. In British Columbia, provincial legislation contains many different definitions as to when common-law spouses may gain some of the rights and obligations of married spouses. 

If you have questions about your own situation, please call us.