Script 148 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script explains your income, financial support and property rights in a common-law relationship. Topics covered include:

• your rights to social assistance, pension plan benefits, employment insurance benefits, medical and dental coverage, and coverage under ICBC insurance programs, 
• responsibility for debts, 
• your right to financial support if you separate, 
• what happens to the property you acquire during your relationship, and 
• why you should have a will.

The discussion about property rights in this script applies to anyone in an unmarried relationship, not just common-law spouses.

Can you get income assistance while living common-law?
The welfare office, the Ministry of Employment and Income Assistance, will treat you like a married couple as soon as you start to live together, whether you are common-law or not. When you apply for welfare, your case worker will look at the income and assets for both of you. If you get income assistance, you’ll get it at the rate for a couple or family, and not as two single people. If you’re under 19, you may be refused welfare, but you can appeal this decision.

Note that if you claim as a single person while living with someone as a couple and this is discovered, you may be required to repay any benefits you have received. You may also face a civil court case or even criminal charges, and you could be refused future services by the Ministry.

Information about income assistance appeals can be found in script 288.

What about getting benefits under a pension plan?
Pension benefits under Canada’s Old Age Security program are paid to Canadian residents over the age of 65. A Spouse’s Allowance is also paid to the spouses of pensioners for spouses between the ages of 60 and 65. To qualify for the Spouse’s Allowance as a common-law spouse, you need to be living together for at least one year. Some other pension plans also recognize common-law relationships.

For more information on Old Age Security benefits, refer to script 239 on “Elder Law, Elder Abuse and Seniors’ Rights”.

Can you get Employment Insurance benefits?
Employment Insurance will treat you and your common-law spouse like you are married if:

• you have lived together for at least 12 months, or 
• you had or are expecting a child together.

If your spouse moves to another city or province, you can quit your job to go with your spouse and still have the right to get Employment Insurance benefits. Note, however, that you can be denied benefits if there’s no work at all for you in the new town.

Are you covered under your common-law spouse’s medical and dental plans?
The BC Medical Service Plan covers people who live together. There’s no requirement about how long you must have been living together. For other medical or dental plans or extended-health plans from an employer, ask at the personnel office about coverage for common-law spouses. Usually, a common-law spouse and children can be covered under other medical plans. 

What about auto insurance?
If you’re injured in an accident, you might be eligible to receive no-fault benefits paid directly to you under your spouse’s car insurance with the Insurance Corporation of British Columbia. ICBC treats you as if you were married if you’ve been living together for at least two years.

For more information on this, refer to script 185 on “Insurance Benefits and Compensation for Accident Victims” and script 188 on “Making a Personal Injury Claim”. 

Are you responsible for your spouse’s debts?
If you sign for a loan, it’s your loan and your responsibility, not your spouse’s. Likewise, if your spouse signs for a loan, it’s your spouse’s responsibility. If you both sign for a loan, you are both responsible to repay the debt, even if you’re just a guarantor and you both mean the loan to be your spouse’s responsibility. This means that if your spouse is unable or refuses to make the payments, you’ll be responsible, even though you may not have had any benefit from the loan. But if you end up paying some or the entire loan for your spouse, you can apply to the court for an order that he or she pay you back.

If you separate can you get spousal support from your spouse?
Spousal support is money paid by one spouse to the other after separation to help that spouse meet his or her financial needs. The Family Relations Act allows married and common-law spouses to apply for spousal support. To qualify to make the application,

• you and your spouse must have been living together as a couple for at least two years before the date of your separation, and
• you must apply to the court for spousal support within one year after separation.

The amount of spousal support payable is usually fixed using mathematical formulas set out in the Spousal Support Advisory Guidelines based on your incomes, the length of time you lived together and other factors. For information on spousal support, refer to script 123 on “Spousal Support”.

If you separate can you get child support from your spouse?
Child support is money paid by one parent to the other after separation to help that parent meet the financial needs of the children. Child support is payable by anyone who is a parent, whether they are married spouses, common-law spouses or neither.

A step-parent can also be required to pay child support, because the definition of a legal parent includes a common-law spouse of a parent as long as:

• the step-parent contributed to the support of the child for at least one year, and
• you must apply to the court for child support within one year after your spouse’s last contribution to the child’s support.

The amount of child support payable is fixed by the Child Support Guidelines according to the payor’s income and the number of children support is being paid for. For information on child support, refer to script 147 on “Common-Law Relationships: About the Children in Your Family”.

What rights do you have to property acquired during the relationship?
This is where there are the biggest differences between being married and being in a common-law relationship. For married couples, the Family Relations Act applies and they are presumed to be entitled to an equal division of all family assets (including the house, a car, bank accounts, etc.) regardless of who owns the asset, and almost every asset is considered to be a “family asset”.

The law is different for people in unmarried relationships. If just one partner owns an asset, that partner is presumed to be entitled to keep that asset. If you own an asset together (the house, a car, bank accounts, etc.), you are presumed to have an equal interest in the asset. If you contributed to the purchase of an asset owned only by your partner, or paid more for the purchase of a joint asset than your partner, you may be able to get out what you put in, however you have to be able to prove your contributions to the purchase and that you didn’t mean to give your extra contributions to your partner as a gift.

However, if you and your partner made an agreement about the ownership of assets – either during your relationship or after you separated – the parts of the Family Relations Act that apply to married couples’ property may be applied to your agreement, if either of you go to court about the fairness of the agreement. 

The law in this area is complex and you should to speak to a lawyer. 

What about the law of “constructive trust”?
Even if you don’t have a formal cohabitation agreement, but you contributed in some way to the assets owned by your partner, you may be entitled to a share of that property based on a “constructive trust” claim. To claim an interest in your partner’s property, you must show three things:

• that there was an “unjust enrichment”,
• that there was a “corresponding deprivation”, and 
• that there is no legal reason for the deprivation.

What does this mean in ordinary language?
Say that John and Mary lived together for ten years. Mary bought a house in her name the year they moved in together, but John couldn’t afford to contribute to the down payment. However, over the next ten years, John put his pay cheques into a joint account with Mary, and the mortgage payments were taken from that account. He also built a new addition to the house. Then the Mary and John split up, and Mary claims that John isn’t entitled to an interest in her property. In this case:

• Mary benefitted from John’s work on the house and his payments to the mortgage (she was unjustly enriched),
• John lost all the money he could have paid to a mortgage on a house he owned, and he lost the money he would have paid if he had worked to put an addition on someone else’s house (he suffered a deprivation corresponding to the benefit Mary received), and there would likely be no legal reason for John to have been deprived and Mary to have been enriched.

John would likely be given an interest in Mary’s house. Probably not a half interest, but something which would compensate him for a reasonable share of his contributions to the mortgage and the amount his addition improved the value of the house.

The same reason applies to unpaid work in your partner’s business, or you stayed home to look after the children while your partner worked and used the money he or she earned to buy property or acquire investments. You may be entitled to a share in those businesses, properties or investments.

The bottom line is this: even if property isn’t in your name, you may have a claim to some part of that property. However, the law in this area is complex and you should see a lawyer.

What if you have to go to court?
If you separate, you may have to go to court to sort out some of your support and property rights. Family Court is a part of Provincial Court, where you can settle many questions dealing with support for you and your children, plus custody and access. Family Court can’t deal with property questions, and it can’t make orders about who will live in the family home. For this, you’ll have to go to Supreme Court, and you’ll likely need a lawyer.

For more information on Family Court, refer to script 110 on “Family Court”. 

Do you need to make a will?
If you want to make sure your spouse and children are taken care of after your death, you need to make a will. In your will, you can say who you want your property to go to. You can also name a guardian who’ll be legally responsible for your children after you die. A court can always make an order that is different than your intentions for the children, however, if this would be in the children’s best interests. You should encourage your spouse to make a will too.

For more information, refer to script 150 on “Common-Law Relationships: What Happens When Your Spouse Dies” and script 177 on “What Happens When You Die without a Will”. 

Where can you get more information?

• Read the booklet “Living Together or Living Apart: Common-law Relationships, Marriage, Separation, and Divorce” by the Legal Services Society, BC and available for free on their website at www.legalaid.bc.ca. To find it, click “Our publications” then under “I want to find a publication by subject,” click “Family law”.
• Also see the Legal Services Society’s Family Law in BC website at www.familylaw.lss.bc.ca  – under “Your legal issue,” click “Common-law relationships”  (http://www.familylaw.lss.bc.ca/legal_issues/commonLaw.aspx).
• Refer also to the other scripts in this Dial-A-Law series.

[updated December 2010]

Dial-A-Law© is a library of legal information that is available:

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