Common-Law Status In BC: Does Cohabitation Matter More Than Before?

For people in a relationship who are unmarried, a lot can turn on whether those individuals are in a “marriage-like relationship” (what is commonly referred to as “common-law spouses”). If two or more people are “spouses”, they may be entitled to things like spousal support or division of property if the relationship ends. They may also be entitled to challenge their spouse’s will if the spouse passes away.

Over the years, our courts have developed a robust framework to apply to the question of whether people in a relationship are spouses. The courts look at a long list of factors, one of which is co-residence or co-habitation. It may be surprising to many that the law in BC does not actually require that people live together in the same residence in order to be “spouses”. While moving in with a partner is often viewed as a sign of commitment in a relationship, it isn’t, necessarily, the beginning of the “marriage-like relationship”.

This means that co-residence is only one of many factors a court will consider. It is not, typically, a determinative factor. For example, in Clark v. Matossian Estate, a couple maintained separate residences but spent the majority of their time together “sharing meals, doing activities, vacationing and socializing with friends” over a long relationship of 38 years. The finding that they were spouses was upheld on appeal.

The fact that there are no hard-and-fast requirements for spousal relationships means that almost any relationship can be argued to be marriage-like, increasing the amount of related litigation. The courts are aware of this, noting that given changing cultural conceptions of marriage, determining whether a relationship is “marriage-like” can be a difficult exercise in sociology.

However, a recent case suggests that co-residence may actually be a factor that is more important than others.

In Major v. Lacey, the Supreme Court of British Columbia considered whether a couple in an 18-year relationship were spouses. In a somewhat surprising decision, despite the relationship resembling a “marriage-like” one in almost all other circumstances, the judge held that the parties never living together is what mattered the most.

Major concerned the breakdown of Ms. Major and Mr. Lacey’s long-term relationship. Ms. Major was a flight attendant, and Mr. Major was a senior executive at a technology company. During their relationship, Ms. Major kept a house in Montreal, while Mr. Lacey kept one in North Vancouver. Despite this distance, they spent considerable time together and often vacationed together, aided by Ms. Major’s travel benefits as a flight attendant.

Ms. Major and Mr. Lacey shared household duties while they were together, travelled together, visited each other’s families, presented themselves as a couple to friends and family, and had a monogamous sexual relationship. The parties even had a “moderate degree” of financial integration, with Ms. Major registering Mr. Lacey on her pension, and Mr. Lacey adding Ms. Major to his will and providing her with financial support.

Despite these findings, the judge held that Mr. Lacey and Ms. Major’s relationship was not marriage-like because they never resided together. Despite being in a “committed, exclusive relationship for over 18 years”, the parties did not regularly live together at a shared home and only spent about three months together each year. This time together was not enough to establish that the parties “lived together in a marriage-like relationship”. Ms. Major’s claim for property division and spousal support was, as a result, dismissed.

This decision could indicate a shift in our law towards putting increased emphasis on co-habitation for a marriage-like relationship to exist. It remains to be seen whether this approach will be followed in future decisions.

Whether people are in a marriage-like relationship, with all of the legal ramifications that follow, remains a highly discretionary decision by judges. As a result, it can be difficult to predict how a judge may determine the question on any individual set of facts. It is a good idea for anyone in a relationship to have a cohabitation agreement so that all parties have clear expectations of their responsibilities should the relationship end. Similarly, proper estate planning is necessary to reliably determine what happens to assets after death and ensure that an estate is not depleted by the cost of unnecessary litigation.