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What rights do gay couples in common law relationships have ? (ca)

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Droit privé > Droit de la famille > Divorce


Written by: Me Matthew Katsionis, Avocat au cabinet Vancouver family lawyer [1]

On : October 6th 2020


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Is there a difference in the legal rights afforded to marriages and common law relationship for LGBTQ couples? I am often asked about legal rights for a gay or lesbian marriage or common law relationship. Vancouver LGBTQ communities have had a strong history of activism and have been integral in the fight for equal marriage rights, but many are still confused as to what the law is now especially for common law couples.

Same sex marriage is legal across Canada now, but each province regulates their own laws for common law couples and property rights. In British Columbia the Family Law Act creates property rights that are the same for married couples and common law spouses.

As a result, the laws in British Columbia provide gay and lesbian marriages and common law relationship the same rights as heterosexual marriages and common law relationships. These laws are most noticeable after a separation or divorce.

The Family Law Act uses the term “Spouse” for both married and unmarried couples. The term “common law” is now rarely used in the law in British Columbia to define a relationship, but the term is still used frequently in the community.

Unmarried spouses or “common law” couples, regardless of sexual orientation, must meet the basic requirement of living in a “marriage like relationship” for two years before the legal rights under the Family Law Act will apply. What constitutes a “marriage like relationship” can be complex and is the subject of another Crossroads Law Blog.

Once the two-year period for a marriage like relationship is reached, unmarried/common law spouses will have the same entitlements to property, children and support after separation as a couple who is legally married. These entitlements include:

  • Sharing assets accumulated during the relationship 50/50;
  • Sharing liabilities accumulated during the relationship 50/50;
  • Sharing the increase in value of any assets that were acquired prior to the relationship;
  • Custody of children of the relationship; and
  • Spousal support (alimony) and child support.

This is why it is very important for couples to consider a cohabitation agreement before they live together for two years as the rights to property and asset division, as well as spousal support, crystalize in most cases after living together for two years. Cohabitation agreements for LGBTQ couples are legally enforceable in the same way as cohabitation agreements for heterosexual couples.

In marriages, the triggering date for property rights is the date of marriage, which shortcuts the two year period of “marriage like relationship” and therefore a prenuptial agreement should be considered well in advance of the date of marriage. Again, prenuptial agreements for LGBTQ couples are legally enforceable in the same way as prenuptial agreements for heterosexual couples.

Tips:

  1. Get a clear idea of your partner’s finances before long before entering into a marriage or common-law relationship so that there is time to draft and sign a cohabitation agreement or prenuptial agreement.
  2. If you have concerns about what could happen to your assets after a separation or divorce, especially if you own a business, consider getting a consultation with a family lawyer early on.
  3. Discuss the expectations around asset sharing with your partner at the beginning of the relationship rather than close to the two year mark of living together.
  4. If you are already married, or an unmarried spouse under the Family Law Act, you are still able to get a relationship agreement that can address the same concerns as a cohabitation agreement or prenuptial agreement. However, negotiating such an agreement (often called a post-nuptial agreement) is much more difficult as someone is essentially being asked to give up the rights to assets or support that they already have.