So you think you are in a marriage-like relationship, and you wonder, what does that mean? Why does it matter? We attempt to answer that very question with this post.
Once you have been in a marriage-like relationship for at least 2 continuous years, you meet the statutory definition of “spouse” in a number of British Columbia statutes including the Wills, Estates and Succession Act and the Family Law Act. This means that you gain the rights and the obligations that those laws give to “spouses”.
Wills, Estates and Succession Act
The 2014 Wills, Estates and Succession Act (WESA) replaced four existing statutes in BC (the former Wills Variation Act, Estate Administration Act, Probate Recognition Act and Wills Act).
WESA defines a spouse in section 2 which states:
When a person is a spouse under this Act
2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and (a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of the Act if, (a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act to arise, or (b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation, (a) they begin to live together again and the primary purpose of doing so is to reconcile, and (b) they continue to live together for one or more periods, totaling at least 90 days.
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as a relevant time.
If you are a spouse (and therefore have a spouse) pursuant to WESA, your rights and obligations are changed as follows:
- Intestate Distribution. WESA provides how your estate will be distributed if you die without a will (intestate). If, at the date of death you have a spouse, your estate will be distributed differently than if you die without a spouse.
- Voids Gifts. Under WESA, you cannot be a witness to a will that leaves anything to you or your spouse. If you are a witness and either you or your spouse benefit from the will, the gift(s) is(are) presumed to be void.
- Revokes Gifts. Under WESA, if you are or become the spouse of a person who later leaves you a gift through their will, appoints you executor or trustee of their will, or appoints you as a power of appointment through their will, and you cease to be spouses before your spouse’s death, that gift or appointment is presumptively revoked.
- Right to Apply for Variation. Under WESA, only spouses and children of a deceased person who leaves a will have the right to apply for variation of a will where it does not make adequate, just and equitable provision for that spouse or child.
- Administrator of Intestate Estate. Once a spouse of someone who dies intestate, you have priority in the determination of who will act as administrator on behalf of the intestate’s estate.
Family Law Act
In 2013, the Family Law Act drastically changed the area of matrimonial law in BC. It took what was a long-time division in rights (married versus unmarried) and made both groups entitled to the same rights and responsible for the same obligations.
The Family Law Act defines “spouse” as follows:
Spouses and relationships between spouses
3 (1) A person is a spouse for the purposes of this Act if the person (a) is married to another person, or (b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 and 6, has a child with the other person.
(2) A spouse includes a former spouse.
(3) A relationship between spouses begins on the earlier of the following: (a) the date on which they began to live together in a marriage-like relationship; (b) the date of their marriage.
(4) For the purposes of this Act, (a) spouses may be separated despite continuing to live in the same residence, and (b) the court may consider, as evidence of separation, (i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.
Under the FLA, once you are a spouse, you are presumptively entitled to a division of family property, and may be entitled to spousal support. Prior to the Family Law Act, married and unmarried spouses were treated differently and the presumption to equal splitting of assets post-relationship was only for married spouses.
Land (Spouse Protection) Act
The Land (Spouse Protection) Act allows a spouse to file a charge against property where they claim that a “homestead” (or home) is occupied by spouses as their residence either presently or in the last one year immediately preceding the filing.
A “spouse” is defined by the Land (Spouse Protection) Act as “a person who (a) is married to another person, or (b) has lived with another person in a marriage-like relationship for a continuous period of at least 2 years”.
With respect to separation, the Land (Spouse Protection) Act provides that “if at the time of death of a spouse, the surviving spouse is living apart from the deceased spouse under circumstances disentitling the surviving spouse to support, alimony or maintenance, no life estate vests in the surviving spouse and the surviving spouse does not take any benefit under this Act.”
What counts as a marriage-like relationship? Check out our post on that topic here.