Cohabitation Agreements and the new Family Law Act:Why you probably want a cohabitation agreement

In a previous post, “Why you DON’T Want a Cohabitation Agreement,” I summarized the law on the division of property between unmarried couples and how s. 120.1 of the Family Relations Act usually made cohabitation agreements a very, very bad idea when the purpose of the agreement was to protect property brought into a relationship. 

That’s all changed as a result of the enactment of the Family Law Act on 24 November 2011. Let me explain.

Property, unmarried couples and the Family Relations Act

Under the Family Relations Act, married spouses are presumed to have a one-half interest in everything that qualifies as a “family asset.” The definition of family asset is so broad, however, that almost everything a married couple has is a family asset whether they bought it after the marriage or brought it into the marriage; most of the time, a married spouse is entitled to half of everything regardless of when and how an asset was acquired.

This isn’t the case for unmarried couples because unmarried couples are expressly excluded from the parts of the Family Relations Act that deal with the division of family assets.

Unmarried couples have no shared interest in any assets except those that they own together. When only one person owns an asset, like the family home, for example, it presumptively remains that person’s sole property, no matter how long the couple lives together.

Unmarried couples, trust claims and unjust enrichment

Of course, after a couple has lived together for five, ten or twenty years, it can seem somewhat unfair that only one of them has an entitlement to the family home, or the family car, or a business or whatever. In a case like this, the person who doesn’t own an asset tries to establish an entitlement by proving the existence of an express trust or a resulting trust, or, more commonly, by proving that the person who owns the asset was unjustly enriched by something the non-owner contributed during the relationship.

All of these claims are difficult to prove, and, even when successful, rarely result in a property interest any where close to the one-half interest the parties would have had if they had been married.

As a result, someone who didn’t want to share the assets being brought into a relationship would simply get some legal advice about how to avoid express and resulting trusts, and make sure that the contributions of the other spouse were always compensated in someway in order to duck an unjust enrichment claim.

Unmarried couples, cohabitation agreements and the Family Relations Act

Despite this rather favourable legal circumstance, people often wanted cohabitation agreements before entering into a long-term, live-in relationship, mostly to address the division of property in the event the relationship ended. Normally, this would be a sensible course of action; wouldn’t it be easier not to have to worry about unintentionally creating a trust relationship or being inadvertently enriched? 

Not so. The problem here lay in a nasty little section of the Family Relations Act, s. 120.1. Under this section, if an unmarried couple made an agreement that dealt with property, the parts of the act that apply to the division of assets between married spouses applied to the unmarried couple making the agreement, and the cohabitation agreement was considered to be a marriage agreement.

This was very bad, for two reasons. First, s. 65(1) of the Family Relations Act expressly allows the court to vary marriage agreements it finds to be unfair. Second, the definition of “fairness” was the presumption of equal entitlement set out in s. 56 of the act which would otherwise have only applied to married spouses.

In a nutshell, as a result of s. 120.1, the standard of property division for married spouses applied to unmarried couples with cohabitation agreements, including certain presumptions about the division of property that would be far worse in effect than what the principles of trust law and unjust enrichment would have yielded in the absence of the cohabitation agreement.

Unmarried couples and the Family Law Act

Under the Family Law Act, unmarried couples that have cohabited for more than two years will have the same property rights as married spouses.

Under the new act, assets brought into a relationship and certain assets acquired afterwards, like court awards and inheritances, will be excluded from division between spouses. The assets that will be divided, and the presumptive division is an equal division, are the assets acquired after the relationship began as well as any increase in the value of the excluded assets.

From the point of view of the person who owns an asset, this is better than the law for married spouses under the Family Relations Act and better than the law for unmarried couples with a cohabitation agreement. However, there can still be some very significant consequences in sharing in the increase in value of an excluded asset — think of what has happened to the value of real estate in the lower mainland over the past 10 years, or the values of stock in Apple, crude oil and your Gretzky rookie card over the same period.

Despite the coming changes in the law, some couples will still want a cohabitation agreement, specifically couples who are in long-term unmarried relationships right now and couples with assets who expect to be in long-term unmarried relationships.

Cohabitation agreements, the repeal of s. 120.1 and the coming-into-force of the Family Law Act

The Family Law Act became law on 24 November 2011. Although most of the act, including all the parts about property division, are not yet in force, other bits came into effect right away, including s. 258 which had the effect of repealing s. 120.1. Fantastic! Since the Attorney General has said that the rest of the Family Law Act isn’t going to come into force for another 12 to 18 months, this means that we’re in the middle of a legislative sweet spot for unmarried couples. 

Unmarried couples may now enter into cohabitation agreements without fear of the grim consequences of s. 120.1, and almost without regard to the property provisions of the Family Relations Act. 

On top of that, unmarried couples probably want to enter into cohabitation agreements if they wish to avoid some or all of the consequences of the property division regime of the new Family Law Act. In other words, if there’s anything about how property will be shared under the new act that browns you off, now is your opportunity to do something about it, and you’ve got 12 to 18 months within which to get it done. 

Get a cohabitation agreement and get it soon

For the next 12 to 18 months, couples across the province will be going through an unpleasant assessment of how their legal rights will fare under the new act. That’s okay, it’s a necessary consequence of change. However, if you are in a relationship of the sort that won’t require you to share your property, that’s going to change too, and if you want to do something about it and don’t want to end your relationship, the time is ripe to get a cohabitation agreement done up.

There will never be a better time to enter into a cohabitation agreement than right now, under the current law and between the repeal of s. 120.1 and the coming-into-force of the property provisions of the new Family Law Act.

Cohabitation agreements are somewhat complicated at the best of times; they’re somewhat more complicated now that we’re in the transition between one legal regime and another. You really must see a lawyer if you want to get a cohabitation agreement drawn up. If you don’t have someone to see, contact the CBA's excellent Lawyer Referral Service at 604-687-3221 or 800-663-1919.

Becoming Common-Law

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

I was looking at one of the forums which links to my website, and a user had posted a question which reminded me of the prevalence of bad information about common-law relationships: "how do I apply for common-law status?" I think it's time for a refresher.

Being "common-law" is all about qualifying as a spouse as defined by a particular law.

Different laws have different definitions of "spouse."

Under the federal Divorce Act, "spouse" means someone who is or was legally married to someone else; under the Canada Pension Plan, a "common-law partner" means someone who lived in a conjugal relationship with the pension contributor for at least one year.

Under the provincial Family Relations Act, "spouse" is defined as including married people as well as unmarried people who have lived together in a marriage-like relationship for at least two years. Under the Employment and Assistance Act, the law about welfare benefits, "spouse" includes people who have lived together for at least three months if the relationship demonstrates some sort of interdependence.

As a general rule of thumb, most federal laws define "spouse" or "partner" as including unmarried people who have lived together for at least one year and most provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Qualifying as a spouse may give you benefits and obligations under a particular law.

A "spouse" under the Family Relations Act is entitled to use the act to apply for spousal support (or may be obliged to pay it), and someone who is the "spouse" of a parent may be obliged to pay child support in respect of the parent's children.

A "spouse" under the Wills Variation Act is entitled to use the act to apply to change the distribution of benefits set out in a person's will. A "common law spouse" under the Estate Administration Act is entitled to an automatic share in the estate of someone who dies without a will.

A "partner" under the Canada Pension Plan is entitled to share in someone's pensionable credits and may be entitled to survivor's benefits in the event of that person's death.

The definition of spouse usually has conditions and limits.

For unmarried couples, applications under the Family Relations Act must be made within one year of separation. After that, they will no longer be a "spouse" within the definition of the legislation. Married couples, on the other hand, must make their applications under the act within two years of divorce or the annulment of their marriage.

The Wills Variation Act and the Estate Administration Act both define a "spouse" as someone who was living with the deceased person immediately before his or her death. If the couple separated before the the person's death, they won't qualify as spouses.

The Divorce Act only defines "spouse" as including married or formerly married couples. Unmarried couples can't use this act for anything.

Being common-law is only about the definition of spouse.

Common-law spouses only become common-law spouses because they happen to meet the terms of a particular law's definition of "spouse," which usually happens because they cohabited in a marriage-like relationship for a specific period of time. They don't apply for common-law status; there's no government agency to apply to and there's no government agency that keeps track of common-law relationships.

Common-law spouses aren't legally married and will never become married, no matter how long the relationship lasts... unless of course they actually get married, with a marriage licence, a marriage commissioner and all the rest.

Summary:

A couple become common-law spouses when they meet a particular law's definition of "spouse." Meeting a law's definition of spouse usually involves (a) living together (b) in a romantic relationship (c) for a certain amount of time. No application is necessary, just the passage of time. The definition of spouse changes from law to law.

Most but not all federal laws define "spouse" as including unmarried people who have lived together for at least one year; most but not all provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Being common-law spouses doesn't mean that a couple is married; it means that the spouses may have certain rights and duties toward each other. The nature of these rights and duties also changes from law to law, and some laws impose terms and conditions on the rights and duties unmarried spouses.

Supreme Court of Canada Clarifies Unmarried Property Claims

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

The Supreme Court of Canada has just released an important decision updating the law on property claims brought by unmarried parties. The decision caps a recent trend to expand the meaning of "juristic reason" in the context of unjust enrichment claims and clarifies the calculation of compensation where unjust enrichment is found; along the way the court revokes the application of the resulting trust in resolving domestic property claims.

Kerr v. Baranow is a joint decision released on two appeals, the eponymous case from British Columbia and Vanasse v. Seguin out of Ontario. Before I can talk about the importance of the decision, I first need to explain the basic law about property claims flowing from unmarried relationships. Bear with me.

The Property Rights of Unmarried Couples

The domestic relations legislation of most provinces treats married couples differently than unmarried couples when it comes to property. In British Columbia, the Family Relations Act gives married couples a presumptive half interest in all of the assets when they split up. Unmarried couples are excluded from this part of the act, and as a result the only things both parties have a presumptive entitlement to are the assets that they own together. When an asset isn't jointly owned, the non-owning person usually has to jump through a bunch of hoops to establish a legal interest in the asset.

Non-owners usually establish a claim to property owned someone else through the law of trusts, by proving the existence of an express trust, a resulting trust or a constructive trust. An express trust happens when the parties agree that although one person will be the legal owner of a property, the other person will be the beneficial owner of the property. A resulting trust happens when the conduct of the parties gives rise to the assumption that they meant a trust relationship to exist.

A constructive trust is a bit different. A constructive trust is a trust relationship imposed by the court as a remedy for a party's unjust enrichment. Constructive trusts are the most common way unmarried persons obtain a legal interest in property owned by someone else.

Trust claims are often difficult to prove and the legal issues can be very complicated, especially when the claims of one person seem to be offset by the claims of the other person. Making things worse, the results of successful claims usually pale in comparison to what the result would have been had the couple been married.

Unjust Enrichment

To establish that a person was unjustly enriched, you must prove three things:

1. that the person received a benefit,
2. that the other person suffered a loss corresponding in some way to the benefit, and
3. that there is no juristic reason for the benefit and the loss.

Say your partner owns a restaurant and one day the cook quits. Your partner phones you up in a panic, asking you to come down and help out. You've been in this relationship for quite awhile, so of course you agree, and you head on down to the restaurant. One day turns into two days, which turns into two weeks and then two months. Before you know it, you've been working at the restaurant for two years! Over all that time, you never asked to be paid for your work and your partner never offered to pay you; you are your partner's partner after all and the money from the restaurant did wind up paying for the mortgage, the car loan and the phone bill.

In this example, your partner received a benefit (your unpaid work as a cook for two years) and you suffered a loss which exactly corresponds to the benefit your partner received (the money you could have made if you had worked as a cook in someone else's restaurant for two years), and there was no juristic reason for the benefit and loss (you weren't under a contractual obligation or court order to do the work). Your partner has been unjustly enriched.

The Law since Pettkus v. Becker

The legal underpinnings of unjust enrichment and the constructive trust were first set out in another case from the Supreme Court of Canada, Pettkus v. Becker, decided in 1980. The law has evolved somewhat over the past 31 years.

The benefit received by a party must be tangible even though it may not be permanent. A benefit can be positive, in the sense of goods or services received, or negative, in the sense of an expense avoided. None of this is a significant change from Pettkus.

The loss must relate to the benefit. A loss will be irrelevant and incompensable if there is no corresponding benefit. This too doesn't represent much of a change

The law on the absence of juristic reason issue is where the action is. The courts have refused to confine juristic reason to a narrow definition. In the mid-80s, juristic reason was found to encompass moral issues and policy questions. In the early-90s, juristic reason included the parties' reasonable expectations. In 2004, in a case called Garland v. Consumers’ Gas Co., the court developed a two-stage test:

1. the person claiming unjust enrichment must show that there is no established category of juristic reason to deny the claim, and
2. the person opposing the claim may then argue that the parties' expectations were such that the claim should be denied or that the claim should be denied for public policy reasons.

Compensation for Unjust Enrichment

When unjust enrichment is proven, the court first tries to provide compensation through a cash award. When a cash award would be insufficient or can't be paid, the court will provide compensation by giving the non-owner an interest in the property.

Using the example above, the compensation due to you would be calculated as the amount a cook of equal skills would have been paid for working the same hours at a similar restaurant. If your partner could pay the compensation due to you, you'd get cash. If you partner couldn't pay the compensation, your partner would be considered to hold an interest in the restaurant for you in trust. A constructive trust is a potential remedy for a party's unjust enrichment.

Of course things are rarely as simple as this. First, in the context of a domestic relationship, benefit is rarely a one way street and both parties usually gain something from their relationship (the value of the work you provided as a cook is balanced to some degree by living for free in your partner's house). Second, it isn't always clear whether the compensation should be given based on the cost of the services rendered (a cook's wages multiplied by the hours worked), called quantum meruit, or by the net benefit of the services rendered (the improvement to the restaurant's value), called quantum valebant; some cases have interpreted a case called Peter v. Beblow as requiring the quantum meruit approach.

The Decision in Kerr v. Baranow

In this case, the court took the opportunity to clarify three issues which have become controversial:

1. how should cash awards be calculated when unjust enrichment is proven,
2. how to address mutual benefits, and
3. how the parties' expectations should be considered when addressing juristic reason.
   

On the first issue, the court held that no calculation method should be preferred. A court should choose the method which best suits the circumstances and the claimant's loss:

"The unjust enrichment principle is inherently flexible and, in my view, the calculation of a monetary award for a successful unjust enrichment claim should be equally flexible. This is necessary to respond, to the extent money can, to the particular enrichment being addressed. To my way of thinking, Professor Fridman was right to say that 'where a claim for unjust enrichment has been made out by the plaintiff, the court may award whatever form of relief is most appropriate so as to ensure that the plaintiff obtains that to which he or she is entitled, regardless of whether the situation would have been governed by common law or equitable doctrines or whether the case would formerly have been considered one for a personal or a proprietary remedy'."

However, where the enrichment is based on one person keeping the fruit of the family's collective effort, a cash award should be calculated as the claimant's proportionate contribution to the family enterprise.

On the second issue, the court held that mutual benefits can be taken into account either as a juristic reason against a finding of unjust enrichment or as part of calculating the compensation due when unjust enrichment has been found. Mutual benefits should not be considered when arguing about whether there was a benefit and corresponding loss:

"I conclude that mutual benefits may be considered at the juristic reason stage, but only to the extent that they provide evidence relevant to the parties’ reasonable expectations. Otherwise, mutual benefit conferrals are to be considered at the defence and/or remedy stage."

On the third issue, the court held that the parties' reasonable expectations should be considered in the second stage of the juristic reason test, and that it is each party's expectations which must be considered not just those of the claimant:

"The parties’ reasonable or legitimate expectations have a role to play at the second step of the juristic reason analysis, that is, where the defendant bears the burden of establishing that there is a juristic reason for retaining the benefit which does not fall within the existing categories. It is the mutual or legitimate expectations of both parties that must be considered, and not simply the expectations of either the claimant or the defendant. The question is whether the parties’ expectations show that retention of the benefits is just."

Like Peter v. Beblow, and Pettkus v. Becker before it, this case will become one of the standard cases used to argue unjust enrichment claims.

Update: 24 March 2011

I've just come across a recent judgment of the British Columbia Supreme Court, Mr. Justice Willcock's decision in D.P.S. v. B.H.L. which provides a very helpful discussion of Kerr v. Baranow. The discussion of the law begins at paragraph 43.

The Ins and Outs of Separation... Part III:The Whens

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

Although a lot of people get hung up identifying the date of separation, getting the date precisely right is only critical in one specific situation: when spousal support is an issue for unmarried spouses. I'll discuss the date of separation in relation to married spouses first and then get to this issue involving unmarried spouses.

Divorce and the Date of Separation

Under the Divorce Act, there is only one ground for divorce: breakdown of the marriage. There are three reasons why marriage breakdown may have occurred: separation for a period of not less than one year, adultery or cruelty.

Most divorces are based on the spouses' separation. To calculate the required one year period you have to know when you separated, and the court forms used to claim a divorce, the Notice of Family Claim (Form F3) and the Counterclaim (Form F5), will ask you to state the date of separation. Under s. 8(2)(a) of the Divorce Act, the date of separation is the date when the spouses began to "live separate and apart."

Separation

I've written about how separation happens in previous posts. Here's a quick recap.

• The spouses don't have to agree to separate. All it takes is one spouse recognizing that the marriage is at an end and saying so.
• Merely living apart doesn't mean a couple have separated for the purposes of divorce. There must be a belief that the marriage is at an end.
• On the other hand, it isn't necessary for a couple to actually live apart; many separated couples continue to live under the same roof.
  

As a result, I think it's safe to say that the formal "date of separation" is the date on which a spouse forms the conclusion that the marriage is at an end and takes steps to terminate the marriage-like quality of the relationship. To avoid arguments about the date of separation, it's best if there is some sort of objective marker of separation, such as (a) a communication of the spouse's conclusion that the marriage is over, or (b) a spouse moving out.

Disputing the Date of Separation

Spouses rarely wind up arguing about the exact date of separation because in the vast majority of cases it's not very important. You don't need to be separated for one year before beginning the law suit claiming the divorce; most people have been separated for far more than a year when the court is finally asked to make a divorce order.

If the exact date of separation is argued, it's probably as a defence to the underlying divorce claim, to say, for example, that the spouses have not be living separate and apart for one year when the court is asked for the divorce order or that the spouses were not living separate and apart at the commencement of the law suit claiming the divorce. Arguments like these really only wind up postponing the inevitable and won't be effective to permanently block the divorce order.

If the exact date of separation is not argued, the date set out in the Notice of Family Claim or Counterclaim will do. The court rarely undertakes its own enquiry into the factual accuracy of the claimed date of separation.

Unmarried Spouses and Spousal Support

The Family Relations Act, at s. 1, says that a "spouse" includes someone who is married as well as someone who:

"... lived with another person in a marriage-like relationship for a period of at least two years if the application under this Act is made within one year after they ceased to leave together ..."

This is important because it defines how unmarried couples can qualify as common-law spouses (living together in marriage-like relationship for at least two years) and it says when a person loses the right to apply for an order based on the spousal relationship (one year after the date of separation). To be clear, this definition really only affects a common-law spouse's ability to apply for spousal support and a small number of personal protection orders, because orders about children rest on the definition of "parent", which has a different test, and because common-law couples cannot apply for orders about the division of assets under the act.

When a common-law spouse has a claim for spousal support, the date of separation is very important, more important than it is for married spouses: if the claim for spousal support is not made within one year from separation it cannot be made at all.

The date of separation for unmarried spouses is determined as it is for married spouses. When did one or both spouses reach the conclusion that the relationship was over? If just one spouse made this decision, when was the decision communicated? When did the marriage-like quality of the relationship end?

The Ins and Outs of Separation... Part II:Sex and New Relationships

Questions about sex and new relationships following separation are very, very common... Is it adultery to have sex with someone else after separation? If you're living with someone new, can you be in a common-law relationship before you've divorced? Is it okay to have sex with the spouse you've separated from? Thankfully the answers are pretty simple.

Sex with spouses

Yes, it's okay to have sex with your spouse after you've separated. It happens all the time. There are three things to be aware of.

First, from a legal point of view, s. 8(3)(b)(ii) of the Divorce Act says that married spouses can live together "with reconciliation as its primary purpose" for up to a total of ninety days following separation without stopping the clock on the one-year period of separation that has to pass to get a divorce. (Once more than ninety days have passed, the one-year period starts to run from the last separation.) Honestly, though, I don't see this as much of a problem. Spending the night with your spouse isn't going to count toward the ninety days unless you spent the night for the "primary purpose" of reconciliation rather than sex, which I rather doubt.

Second, if the legal ground for your divorce is based on your spouse's adultery or your spouse's cruelty toward you, you need to know that you may have been considered to have forgiven or "condoned" your spouse's misconduct if you have sex with your spouse after separation. Under s. 11(2) of the Divorce Act, an act of adultery or cruelty that has been condoned cannot be used as a ground for divorce.

(There aren't any legal problems with unmarried spouses or partners having sex after separation since a divorce isn't necessary to end unmarried relationships.)

Third, from an emotional point of view, you might want to think about what having sex with your spouse will do to the progress you've been making in getting over that relationship and building a life for yourself that doesn't include him or her. Lots of people are able to handle the messiness of sex with a separated spouse; other people find it to be emotionally difficult.

Sex with other people

As long as you're married, having sex with someone who isn't your spouse counts as adultery. If you're separated at the time however, no one except your in-laws or the Pope is going to care.

I suppose it's true that your spouse could claim adultery as the ground for your divorce, but if you've already separated from your spouse, your marriage would seem to have already come to an end for an entirely different reason than your adultery. Apart from this one issue about the legal ground for your divorce, having sex with someone else isn't going to have an impact on how your divorce is handled. It isn't relevant to whether spousal support is payable or not, how much child support will be paid, how property will be divided or what the parenting arrangements are going to look like.

(There's no such thing as adultery for unmarried couples, since you have to be married in order for sex with someone other than your partner to count as adultery.)

New relationships

As I often tell my clients, there's nothing a separated married person can't do that a single person can, except to get married. Apart from that, a separated married person can see other people, date other people, have children with other people and live with other people.

What's interesting about all of this is that there's nothing stopping a person who's married to someone qualifying as someone else's common-law spouse. Under the Family Relations Act, "spouse" includes, in addition to people who have been married, people who have lived together in a "marriage-like relationship" for at least two years. In other words, if it's taking awhile to get your divorce and you've moved in with someone else, you could have two legal spouses: the person you're still married to and the person you've been living with. Surprise!

I talk about the legal consequences of having two spouses in the Marriage & Divorce > Separation chapter of my website.

Future posts

Separation is a broad subject. If there's something you'd like me to discuss, please say so in a comment to this post. Click on the "separation" label below to read other posts about separation.

Okay, so there's (probably) a new law coming. Now what?

Important Update: The Family Law Act was introduced on 14 November 2011. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

Readers of this blog, or any local newspaper really, will know that the provincial government is planning on introducing a brand new Family Law Act sometime in 2011 that will revolutionize family law in British Columbia. I've summarized the proposed new Family Law Act in a previous post.

In September, I published another post which talked about how bill becomes a law and how a law comes into force. One of the points I was trying to make was that the Family Law Act described in the government's White Paper (PDF) doesn't have any legal effect at present and may not look anything like the Family Law Act that comes into force, and a result you shouldn't make any decisions on assumptions drawn from the White Paper.

That being said, I was recently consulted by a fellow who wanted a cohabitation agreement. (I have written at length about why cohabitation agreements are a really bad idea under the current law if the point of the agreement is supposed to be about protecting property; read my post on the subject, "Why you DON'T want a cohabitation agreement," before continuing.) This is an important problem because if the new law looks anything like the White Paper's proposal, the property interests of common-law couples and married couples are going to look very different than they do right now and, either way, the dilemma posed by s. 120.1 of the Family Relations Act will no longer exist.

So what do you do now? Frankly, I'm not sure, and any answer is going to involve an awful lot of assumptions.

If the Family Relations Act is replaced and if the new act looks like the White Paper's proposal, lots of things are going to be different:

• common-law couples will have the same property entitlements as married couples
• the value of property brought into the relationship will be excluded from sharing, as well as certain other kinds of property like court awards and inheritances
• property bought with excluded property will also be excluded from sharing
• agreements about property will only be set aside where there is a defect in the agreement or how the agreement was entered into, such as a misunderstanding about the nature of the agreement or a failure to disclose the existence of an asset

In circumstances like this, it's not clear what a marriage or cohabitation agreement about property might accomplish. Perhaps such agreements would more clearly define which assets are excluded from sharing, or address how excluded property will used during the relationship. Perhaps they would attempt to regulate how property acquired during the relationship will be paid for, or how such property would be divided at the end of the relationship.

Whatever winds up happening, the only thing we know for certain is that the Family Relations Act is the law of the land, and this is the law you need to be thinking of when planning a new relationship. We can't say for certain that the Family Relations Act will be replaced; if it's replaced, we don't know what the replacement is going to look like or when it will come into effect. We also don't know how the replacement will deal with relationships that are ongoing when it comes into effect. Will there be an exemption for existing relationships? If the new law applies to existing relationships, will it apply right away or will there be a grace period?

I think that if you are planning on a new cohabiting relationship and need to be absolutely sure about the law that will apply to your relationship, you're best off waiting until the bill passes final reading. Your second best choice would be to have an agreement not about property but an agreement to negotiate an agreement about property when the content of the new law is known.

Vanier Institute Issues Report on Canadian Families

The Ottawa-based Vanier Institute has published a study on Canadian families based on the 2006 census. According to the CBC article on the study:

• 40% of marriages now end in divorce
• one in ten people live in an unmarried, common-law relationship
• 16.5% of same-sex couples marry

I'm sure there's more to the Institute's 211-page study than the CBA has reported; read the summary to learn more. You can also visit the website of Statistics Canada and get your data right from the horse's mouth.

The Ins and Outs of Separation... Mostly the Outs

Separation, in the sense of ending a relationship, is actually rather straightforward. What's required is a decision by one person to end the relationship and the announcement of that decision to the other person, although sometimes the announcement is made nonverbally... by moving out.

This post talks about some common misunderstandings about separation and then about how to do it.

The Legal Separation

There's no such thing as a "legal separation" in British Columbia. You don't need a document to say you're separated; you don't need to see a lawyer and you don't need to see a judge to separate.

In fairness, there used to be something called a judicial separation or a divorce a mensa et thoro (a divorce from bed and board). Judicial separations were once required to relieve a married couple of their common law duty to live together and support each other, but this sort of half-divorce hasn't been available for many, many years.

Separation Agreements

Sometimes people mean a separation agreement when they talk about a "legal separation." A separation agreement is a contract which records a couple's settlement of the legal issues resulting from the end of their relationship. Although you don't need a separation agreement in order to separate, separation agreements are an excellent way to avoid court.

How to Separate

A couple is separated once either or both people decides that the relationship is over, announces that decision and terminates the marriage-like aspects of the relationship, such as sleeping together, eating together, doing household chores for the benefit of the whole family and so forth.

The decision to separation only needs to be made by one person; the consent or permission of the other person is not required. The reason why a decision is required at all is to distinguish couples who live separate and apart for reasons like employment from couples who live separate and apart because they've split up.

Staying Under the Same Roof

Most couples move out and find new places to live after they separate. Some couples continue living together after they've separated, usually because living together is so much cheaper than living apart. The court will consider couples who have split up but continue to live under the same roof to be separated looking at things like:

1. whether the couple have stopped sharing the same bed or bedroom;
2. whether the couple have stopped having sex together;
3. the extent to which each person does their own chores;
4. whether the couple have opened separate bank accounts and begun to separate their finances; and,
5. whether the couple have stopped going to social functions as a couple.

Separation and the Legal End of a Relationship

For all unmarried couples, including common-law spouses, separation is all that's required to legally end a relationship.

Married spouses, on the other hand, must get a divorce to legally end their relationship... no matter how long they've been separated. There is no such thing as an "automatic divorce." A married couple will be married until they divorce, whether they've been separated for one year or thirty.

This difference is important for unmarried couples because certain limitation dates begin to run from the date of separation, the most important of which involve the right to apply for spousal support and, although this isn't quite accurate, the right to apply for child support for children brought into the relationship.

Future Posts

A future post will discuss a perennially popular topic, sex and new relationships after separation. Separation is a surprisingly broad subject. If there's a topic you'd like me to discuss please say so in a comment to this post.

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

These search terms are all about marriage and divorce.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> consequences of getting remarried without getting divorced

This one's easy enough: your new marriage won't be valid.

Without a divorce, any other marriage is technically bigamous under the Criminal Code yet also void under the common law.
>> how many years after separation are you considered divorced

Never. Until you get that divorce order you're still married. No marriage is over until a court has made a divorce order, no matter how much time has passed since the spouses separated.

>> is it ungodly to attend a person's third marriage

I don't normally pronounce on religious issues, but this search term was too hard to pass up. If it is ungodly, perhaps you need to find a new religion if you're really prepared to put your religious scruples above your loyalty to a friend and a celebration of his or her happiness.
>> use of the divorce act for common law relationships canada
Also easy: none.

The federal Divorce Act only applies to people who are married to each other or who used to be married to each other. Unmarried couples, including couples who qualify as common-law, only have the provincial Family Relations Act and a few other laws to rely on in resolving the issues arising from their separation.
>> common law marriage divorce needed to end relationship

Common-law couples are not married; there is no such thing as a common-law marriage.

All "common-law" status means is that a couple qualify as "spouses" within the meaning of a particular law. Some laws, like the Family Relations Act and many other provincial laws, define a spouse as someone who is married or someone who has lived in a "marriage-like relationship" with another person for at least two years. Other laws have different definitions of spouse. Most federal laws, for example, only require that the couple have lived together for one year, while laws about welfare eligibility require an even briefer period of cohabitation.

Since common-law couples aren't married, there's no need for them to get a divorce to formally end their relationships. A common-law relationship is over when the couple separates. There's no magic to it, nor any need for a court order.