Property and Debt
Common-Law Separation in BC: What You Are Actually Entitled To
Mandy Shergill29 July 20268 min read
There is a belief that keeps costing people in British Columbia a great deal of money: that living together without marrying keeps your finances separate.
In BC, it does not. Once you have lived with someone in a marriage-like relationship for two continuous years, the Family Law Act treats you as a spouse for almost every purpose that matters. Property. Debt. Spousal support. The family home.
In short: after two years of living together in a marriage-like relationship, a common-law spouse in BC has essentially the same property division and spousal support rights as a married spouse. BC is one of the most generous provinces in Canada in this respect, and people who moved here from Ontario or Alberta are often surprised by it.
When are you considered common-law in BC?
Under the Family Law Act, you are a spouse if you have lived with another person in a marriage-like relationship for at least two continuous years, or if you have a child together and have lived together for any length of time.
Those two routes give you different rights, and the difference matters enormously.
- Two continuous years living together: you get the full package. Property division, debt division, and spousal support.
- A child together, but less than two years living together: you can claim child support and spousal support, but you do not get the property division rights under Part 5 of the Act.
The phrase doing the heavy lifting is "marriage-like relationship." There is no checklist in the legislation. Courts look at the whole picture: whether you shared a home, how you handled money, whether you presented yourselves publicly as a couple, sexual and emotional intimacy, whether you shared household work, how you treated each other's families, and whether you intended a long-term commitment. Two people can share an address for three years and not be spouses. Two people can maintain separate homes for practical reasons and still be found to be spouses.
"Continuous" also has some flexibility. Short separations and reconciliations within a relationship do not necessarily reset the clock. But a genuine separation followed by getting back together can.
If you are not sure whether you crossed the two year line, that is precisely the question a lawyer should answer before you agree to anything, because everything else follows from it.
How is property divided after a common-law separation in BC?
Family property is split equally between spouses, married or common-law, and so is family debt. What each of you brought into the relationship is usually excluded, but the growth in its value during the relationship is shared.
This is the part that surprises people most, so it is worth going slowly.
Family property is generally everything either of you owns on the date of separation, no matter whose name is on it. The house, vehicles, bank accounts, investments, RRSPs, pensions, a business interest, a rental property.
Excluded property under section 85 normally includes:
- property you already owned before the relationship began
- gifts and inheritances received by you during the relationship from someone else
- certain court awards and insurance payouts
- some property held in trust for you
Here is the trap. Excluded property stays yours, but the increase in its value during the relationship is family property and is divided equally. If you owned a Surrey townhouse worth $600,000 when your partner moved in, and it is worth $850,000 when you separate, the $600,000 is excluded and the $250,000 of growth is shared. On BC real estate over even a few years, that shared portion is often the largest number in the whole case.
Two more things people get wrong. The exclusion has to be proven, which means documents. If you cannot show what the property was worth at the start of the relationship, you may lose the exclusion entirely. And an exclusion can be undermined by how you handled the asset, for example by putting your partner on title or by refinancing and mixing the money into joint accounts.
Family debt is divided the same way. All debt either of you took on between the start of the relationship and the date of separation is shared equally, even if only one of you signed for it and even if only one of you benefited from the spending.
Equal division is the starting presumption, not an absolute rule. A court can divide family property or debt unequally, but only where equal division would be significantly unfair. That is a high bar, and it is deliberately hard to meet. Our post on how family property is divided goes deeper on this.
Can a common-law spouse get spousal support in BC?
Yes. A common-law spouse in BC can claim spousal support on exactly the same basis as a married spouse.
Entitlement comes first, and there are three routes to it. Compensatory, where one person's earning capacity suffered because of the relationship, for instance by leaving work to raise children or to support the other's career. Needs based, where one person cannot meet reasonable needs after separation while the other can. And contractual, where you agreed to it.
Only once entitlement is established do the Spousal Support Advisory Guidelines come into play to suggest a range for amount and duration. Where there are no children, the guidelines suggest roughly 1.5 to 2 percent of the difference between your gross incomes for each year you lived together, and a duration of about half a year to a full year of support for each year of cohabitation. Relationships of twenty years or more, or shorter relationships where age plus years together reach 65, can attract support without a fixed end date.
Those guidelines are advisory, not binding, and the calculation changes considerably when child support is in the picture. Anyone quoting you a confident number without seeing both incomes and the parenting arrangement is guessing. Our page on spousal support covers the mechanics.
The deadline that catches common-law couples
This is the most important paragraph in this article.
A common-law spouse in BC has two years from the date of separation to start a claim for property division or spousal support. Miss it and the claim is generally gone.
Married spouses get the same two year window, but theirs runs from the date of their divorce or annulment order, which is often years later. Common-law spouses do not get that extra runway. Your clock starts on the day the relationship ends.
Two years sounds like plenty. It is not, when you are grieving, managing children, moving out, and hoping the two of you can work it out informally. We have met people who lost a legitimate claim to hundreds of thousands of dollars of shared property growth because they waited. Time spent in mediation or negotiation does stop the clock in some circumstances, but do not rely on that. Get advice inside the first few months.
Do you need a separation agreement if you were never married?
Yes, and arguably more than a married couple does, because you have no divorce order to formally close things out.
A written separation agreement records how property and debt were divided, deals with support or a clear waiver of it, sets out parenting arrangements and child support, and lets each of you refinance, buy property and move on with a clean record. Without one, a bank may not treat your finances as separated, and either of you can raise a claim later.
For an agreement to hold up, both of you need to have disclosed your finances honestly and both of you should have independent legal advice. Agreements signed without disclosure are the ones that get set aside, which means paying twice for the same problem.
If you are still together and want to keep your finances separate, that is what a cohabitation agreement is for. It is far cheaper to write one now than to litigate the same question later.
Talk to a Surrey family lawyer before you sign anything
Common-law separations are often treated as the informal version of a divorce. Legally, in British Columbia, they are not. The property rules are the same, the support rules are the same, and the deadline is tighter.
Shergill Law Corporation is a family law firm in Surrey, BC. Mandy Shergill is a lawyer and mediator, so we can help you resolve a common-law separation through family mediation or negotiation where that fits, and take it to court where it does not. We work with families across Surrey, Delta, Langley, White Rock and the Fraser Valley.
Call (604) 773-4392 or email info@shergilllaw.ca to book a consultation.
Frequently asked questions
How long do you have to live together to be common-law in BC?
Two continuous years in a marriage-like relationship makes you a spouse under the BC Family Law Act , with full property division and spousal support rights. If you have a child together, you can claim child support and spousal support after living together for any length of time, but property division rights still require the two years.
Do common-law partners split property 50/50 in BC?
Family property and family debt are divided equally between common-law spouses, the same as for married spouses. Property either of you owned before the relationship is normally excluded, but the increase in that property's value during the relationship is shared equally.
Is my partner entitled to half my house if we were never married?
Not the whole house, if you owned it before the relationship began and can prove its value at that time. That original value is usually excluded property. The increase in value during your relationship is family property and is generally divided equally, and putting your partner on title or refinancing into joint accounts can put the exclusion at risk.
How long do I have to make a claim after a common-law separation in BC?
Two years from the date of separation. This is shorter in practice than the window married spouses get, because theirs runs from the date of the divorce order. After two years, property division and spousal support claims are generally barred.
Can a common-law spouse claim spousal support in BC?
Yes, on the same basis as a married spouse. You must first establish entitlement on compensatory, needs based or contractual grounds. The Spousal Support Advisory Guidelines then suggest a range for how much and for how long.
What is the date of separation for a common-law couple?
It is the date one of you communicated an intention to end the relationship permanently, by words or by conduct. You can be separated while still living under the same roof. The date matters because it fixes what counts as family property and starts the two year limitation clock, so record it if you can. This article provides general information about family law in British Columbia and is not legal advice. Speak with a lawyer about your own circumstances.
This article is general information about family law in British Columbia. It is not legal advice for your situation. Speak with a lawyer about the facts of your own matter.