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BC's new law erases line between marriage and common-law

BC's new law erases line between marriage and common-law

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In a little more than a month, British Columbia’s 160,000 common-law couples, including nearly 7,000 gay couples, will wake up sharing finances. They will not have signed contracts or put on wedding rings, but the law will have quietly changed around them. To understand why, you might well ask Margaret Kerr.

In June 1991, Kerr was a secretary at the Port of Vancouver when she suffered a stroke. At home and in a wheelchair, she bought groceries with her disability pension and cooked and cleaned for her common-law spouse, Nelson Baranow, while he worked as a longshoreman. Baranow took on more shifts and used the money to pay off the mortgage on his five-storey house overlooking Vancouver harbour.

When Kerr and Baranow’s 25-year relationship fell apart in 2006, Kerr asked for an interest in the house. Baranow refused. The resulting court case dragged on five years and went all the way to the Supreme Court of Canada before Kerr received a share.

Even as Kerr v Baranow plodded through the courts, the BC legislature took steps to stop similar litigation from happening again.

BC’s new Family Law Act, which replaces the 1978 Family Relations Act, will give common-law spouses living together in “marriage-like” relationships for two years or more an automatic right to wealth or property accumulated during their time together.

It will also make each spouse automatically responsible for half the other’s debt, whether they helped incur it or not.

This means that if you break up after two years of cohabitation, as of March 18, you will suddenly find yourself liable for half your ex’s student loans, credit card bills and mortgage. Property acquired before the relationship began is excluded, as are inheritances and gifts.

The whole deal kicks in automatically next month — no registration or recognition required. Couples who want to avoid sharing will need lawyers to write legal agreements in order to opt out.

(Thinkstock / Photo Illustration by Lucinda Wallace)

BC Attorney General Shirley Bond, who introduced the law, says she hopes the Family Law Act will protect children and keep separating families out of court. The change in common-law rules, she says, will “clarify how property is divided to improve fairness when couples break up.”

Nanaimo MLA Leonard Krog, the NDP’s justice critic, helped the act pass with unanimous support. “I think it reflects society’s attitudes,” he tells Xtra. “Any people, regardless of whether they are married... tend to think that they should share property in the same manner as married couples. I think it comes from an ongoing belief that you shouldn’t be treating people unfairly when there’s a breakdown of a relationship, whether they’re married or not.”

But family lawyer Dennis Dahl says many gay couples choose not to marry in order to avoid property-sharing laws.

Nearly a decade after the legalization of gay marriage here, 66 percent of BC gay couples in the 2011 census remain in common-law relationships, compared to only 15 percent of straight couples.

“The vast majority of my clients have absolutely no intention of sharing absolutely everything they own starting from the time they get together,” says Dahl, whose clientele is 80 percent gay.

Dahl says gay couples are less inclined to share assets because their relationships do not suffer from gender imbalance.

Even among straight couples, the traditional family is changing. Since BC family law was last changed in 1978, the Canadian median woman’s income has increased from 41 to 66 percent of the median man’s.

Dahl thinks that for common-law couples, the cure is worse than the disease. “I didn’t see it as a big problem. And it certainly wasn’t a problem for the queer community,” he says. “Was there a big enough problem to justify this? I don’t think so.”

Dahl is not alone in his support for the independence of common-law couples. On Jan 25 the Supreme Court of Canada upheld sections of the Quebec Civil Code maintaining common-law partners’ separate property.

The Quebec National Assembly “has made consent the key to changing the spouses’ mutual patrimonial relationship,” Justice Louis LeBel wrote in his reasons. “In this way, it has preserved the freedom of those who wish to organize their patrimonial relationships outside the mandatory statutory framework.”

In BC, however, the contract regarding property will no longer require consent, and Dahl worries the province has not done enough to publicize the changes. He predicts that many gay couples who prefer financially independent relationships will be caught off guard.

“I know couples who have been together 20 or 25 years who have no idea that this is happening,” he says.

It’s unclear how these older couples will reach back decades to determine the value of their property when they started to cohabit, he adds.

Supporters of the act, such as family lawyer Fiona Beveridge, say gay couples need not worry. “We’re not making anyone do anything,” she says. “We’re just making it so that married persons and unmarried persons have the same rights at the end of the day.”

But family lawyer and feminist advocate Agnes Huang says that is precisely the problem. The new law removes meaningful divisions between common-law relationships and marriage, even for gay couples who do not choose to formalize their partnerships.

“My objection to it is that it essentially takes away from those of us who chose to structure our lives a particular way,” she says. “It imposes a system on us.”

The best thing gay couples can do if they want to avoid sharing property, all the lawyers agree, is to educate themselves.

The qualifications for a common-law relationship, Dahl says, are much lower than they once were. To have a “marriage-like” relationship in BC, you do not have to share a bank account, call yourselves married, be sexually monogamous, file taxes together, or even cohabit all the time. To “hold yourself up to the community as a couple” and share a home is probably enough.

The new law makes it even more important, says marriage counsellor Barbara Mulski, to get to know your partner’s finances. “Most of us know what sexual intimacy is, and we know what romantic intimacy is. But then there’s financial intimacy. We don’t bring that along,” she says. “There’s still a stigma to asking someone about money.”

Mulski says discussing finances should be an important part of dating, especially now that a bad financial situation is infectious. She advises couples to talk seriously about money before making joint financial decisions or moving in together.

To avoid legal conflict, the lawyers suggest, each partner should seek independent legal advice to write a cohabitation agreement that sets out a personalized arrangement for the relationship, disposing of the rules set out by law.

It is also a good idea to set down the value of any current assets, Beveridge says, and include a clause allowing review after five years.

Darryl Aarbo, a family lawyer in Alberta, where a similar law already covers common-law couples, suggests writing a legal agreement even if you are happy with the new law.

Many couples in Alberta end up in court anyway, he says, arguing that property should not be split exactly half and half. “It can result in some very nasty litigation unless you make that contract,” he says.

The law could also leave polyamorous or multiparty families in a strange situation. Federal law forbids partnerships among more than two people. But in a multiparty breakup, who would be entitled to what? The Ministry of Justice says it does not know.

“It is difficult to predict how such a situation would be treated if such a case were brought forth to court,” spokesperson James Beresford says.

It is possible, however, for a person to have multiple spouses: for example, an undivorced person cohabiting with a new partner. “There is no legal reason,” Beveridge says, that in the case of a breakup, someone could not claim property from two spouses. This, and other unforeseen complications, will have to be worked out by the courts.

During the debates on the Family Law Act in 2011, Langley MLA Mary Polak said she hoped the act would promote marriage and the traditional family model.

“Who knows? For those who long for the nostalgic days when marriages, as they felt, were the traditional and best way to go, perhaps this will encourage more people to tie the knot,” she said, “and perhaps the jewellery stores will be doing better business in engagement rings.”

Dahl believes the very opposite is true. The law has taken away all difference between marriage and common-law, he says, and with it left all but a ceremonial advantage to marriage. After March 18, it will not matter whether you say “I do” — only whether you say “I don’t.”

I was wondering why this article focused so much on the gay community. Then I clicked the source link and found out.

:nyan:

I'm not quite sure why this is necessary, though.

The problem I can see with this new law is that it infringes on the rights of people involved in a relationship.

"We the Government" deem that you both share everything in life after 2 years of living together.

I can see this is going to be a big can of worms . Holding people liable for the financial responsibilities as individuals is common sense but two people sharing the load without verbally saying that they would is a bit ludicrous.

The Government needs to focus more on translink, schools and healthcare, not this non sense.

damnit...I don't even get a fucking ring out of this now...

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Originally Posted by duc_evo_sp (Post 8166060)

Indeed.

I have plenty of friends that are simply staying as common-in-law, often for years, until they get things sorted out or they determine that they're completely compatible with living together before making the plunge into marriage. This new law, I think, will just create bigger headaches down the road for unmarried couples that decide to break up.

I think that in the end the new law is more good than bad.

It protects children and people in common-law relationships. Just looking at the Kerr v Baranow example, they were living together for 25 years and it had to go all the way to the SCC for Kerr to get an interest in the house. She would have been left with nothing otherwise just because they were not "officially" married - how is that acceptable?

If you want to keep things separate, just make that clear and sign a contract.

if people have no plans on getting married, wouldn't people just keep a separate address that they "live at alone" to protect their assets and just stay at that place a couple of times a week and use it as their mailing address?

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Originally Posted by Energy (Post 8166084)

I disagree.

I foresee afew issues, being that people will now have to bring up "money" before they either move in together, or let their new-found spouse move in. (Which will complicate the relationship) and I can see TONS of people just lunging at the situation now of living with someone for 2 years, then jumping out of the relationship and saying "Hey, I want HALF YOUR SHIT."

I'd also like to mention something in regard to "Kerr v Baranow."
Without reviewing the entire case, by the sounds of the article, Kerr would buy groceries with her pension and not put any towards the mortgage of the house. While Baranow would work extra shifts and put all his money towards the house, and none to the groceries. Now to me it sounds like Kerr should get the leftover groceries, and Baranow should get the house. Because he was paying for it ALL BY HIMSELF.

If I agree to live with you and share some pots and pans, utility bill and rent, that's pretty cool. I might even help raise your kids. Hell, we're tight, I might even lend you my car.

But did I AGREE to share what I earn and what I will earn?
Nope.

If I wanted that, I'd have signed an agreement.

I'm a strong believer in separation of Church and State.
If you want to get married, do it in your religious institution.
If you want to share finances, sign and agreement and file it with your State/Province.

I don't even see how there should be a grey middle ground like common-law.

It makes you sick when living in Washington I beleive common law is about 7yrs. Fuck whats two years these days anyways? nothing at all, its just the goverment not thinking and trying to fuck everyone like usual.

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Originally Posted by melloman (Post 8166107)

I too, have only read the articles about this in glancing detail.

I think its difficult to say exactly what happens. If, for instance, she buys ALL the groceries, pays bills and ALL the incendiary expenses and he pays ALL the mortgage, then you can say that they each have contributed to the household, and at the end of the relationship should walk away with a share.

But, if he pays everything and she sits like a lump, well then, is she entitled to half the house after 2 years?

Unfortunately, you need to just have a law that says, this is what it is.

I think its important for people to understand that this is a real issue, and have a conversation beyond, "where are we going to put the sofa" and actually find out where everyone's head space is.

I would be super pissed if I was on the hook for someone's student loan just because a relationship of 2 years went south.

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Originally Posted by murd0c (Post 8166171)

Moving in together should not be taken as lightly as before. I know people do it often in a city like Vancouver because it's expensive to live heren but maybe people need to step back and not rush so quickly into things?

With that said, I imagine that a lot of people will be lawyering up and keeping the notaries busy.
Posted via RS Mobile

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Originally Posted by Gridlock (Post 8166179)

But, if he pays everything and she sits like a lump, well then, is she entitled to half the house after 2 years?

Even under the new law, she's not entitled to the property unless it was acquired during the relationship. She is only entitled to a portion of the property's appreciation (if it appreciates at all).

I know that most people here think that the law will screw over men, but you know, there are some who have partners with no debt and just as much in assets (if not more). Women have as much to lose under the new law as men (though, many on RS are millionaires.)
Posted via RS Mobile

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Originally Posted by Energy

If you want to keep things separate, just make that clear and sign a contract.

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Originally Posted by Culverin

If I wanted that, I'd have signed an agreement.

Like a Marriage License???

In the case of the woman in the article, if she expected a share of the boyfriend's house because she was cooking & cleaning for him on her disability pension, she should have straight up told him he had to get hitched. If he said no, then she should have left.

That's all there is to it.

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Originally Posted by duc_evo_sp (Post 8166060)

I disagree with this law. So if my gf lived with me for 2 years she is entitled to half my assets if I purchased it during our relationship tenure. That's kinda BS. One bad breakup and im fucked.

I understand the reason they decided to put this in, but why not choose 5 years or some longer length? There are soo many two year relationships out there. This is stupid.

How hard was the Gold Diggers association lobbying this?

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Originally Posted by azndude69 (Post 8166247)

I disagree with this law. So if my gf lived with me for 2 years she is entitled to half my assets if I purchased it during our relationship tenure.

Or your girlfriend buys something big like a car on a loan, then goes delinquent on the loan and now you're held responsible.

anyway to sign like a prenup for this? lol

fucking bc government, which retard though this was a good idea

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Originally Posted by Great68 (Post 8166258)

Or your girlfriend buys something big like a car on a loan, then goes delinquent on the loan and now you're held responsible.

Well, shouldn't major financial decisions such as buying a car be made jointly, especially if you're living together? Like I said, if anything, this law will actually get couples to talk about finances which is what should be encouraged.

I would say this law gives people who have significant investments or pensions pause for thought. They have something to lose.
Posted via RS Mobile

this is sorta bullshit.

in this day and age with the sky rocketing cost of housing both purchasing and renting, many couples move in together simply for cutting housing costs, even in relationships that arent expected to go to marriage. lots of people date for 3-5 years without intending to marry.

so lets just for example say i get a good job and work 60 hours a week for 2 years to make 250k in that time, and my gf decides to quit her job and go back to school and take on student loans. i pay for housing, food, bills, etc, and she lives off credit while shes going to school. after a few years, it doesnt work out because she says im working too much and we break up. now shes entitled to half my shit and im stuck carrying half her student loan and personal debts?

and now i need to pay a lawyer to write up a contract that says we are opting out of this new law?

you used to need a contract (marriage licence) to prove you were married. now you need one to prove you arent?

i can just imagine the conversation about needing my gf to sign a contract to simply LIVE together. bringing up the pre-nup conversation would be bad enough

My best friend and one of his Exs were living together at his parents house for over a year. Yes he admits that he is dumb for staying with her when i told him over and over to get out..

So this got me thinking.. She had maxed out credit cards and was months behind on rent from before they got together and her hydro and gas bills etc. In one year she was in 5 car crashes, all her vehicles were destroyed and icbc deemed her at fault for all of them. They took her license some time after they started dating and she quite her job. She stayed at home and did not work during this time as she was either sore or handing our resumes, Thats a different story compared to what his parents told us.

Things that she never paid for while they were dating: Rent, gas, groceries, clothes, Almost a pack of menthol cigarets a day. Heck she even got him to pay her insurance for the last month before icbc took her license which was something like $622. They also had a rogers couples plan a month or so into the relationship. They broke up and she took off with the phone and he had to report it stolen and i took over the extra line as he was already low on cash working 2 part time jobs.

Why should he all of a sudden be responsible for half her debt when he already had her draining his bank account (Other then him being an idiot :badpokerface:)

Rich mainlander girls, watch out! hahaha

I think the law needs to be reviewed big time, now I only just briefly read it, but from the article at least it seems
You get half of their assets only if it was purchased within the 2 years, I am kinda 50/50 on that... but you know what, I would let that slide...

the thing that gets me is
You are now liable for 50% of their debt regardless when or where they incurred in their life?! WHAT THE FUCK IS THIS SHIT?! LIKE WHAT THE FUCK, why not make the rules fair at least, saying that you are now liable for the debt for your common law that was incurred during the 2 years that you were together?! OR BETTER, ANY DEBT that you actually co-signed together with your partner.

whats the point of taking out a loan together as a couple then when only one person in the relationship is needed to screw the whole party over..

What if someone has a huge ass debt, gets together with someone, for the full 2 years paying minimum payment knowing that the big break is going to come the moment, its like getting a 50% off deal on everything -.-

as for the example case in the article, the women should have went to the lawyer to get something signed ahead of time. why did the govt didnt make people who want to share fiances go sign on contract, but reversing to have people signed to opt out is beyond me...

//end rant =P

conclusion, i see many many many implications to this new law, we had common-law and marriage as two different categories for a reason, the govt needs to get reminded

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Originally Posted by Tapioca (Post 8166285)

Well, shouldn't major financial decisions such as buying a car be made jointly, especially if you're living together?

In a perfect world. It Doesn't mean they do. Especially if the relationship is rocky. I've known a few couples who have lived together but have been at each others' throats, and I could totally see one side doing something like accumulating a big debt as a "Fuck you" to the other side before breaking up.

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Originally Posted by RRxtar (Post 8166288)

I think the intent is that people should not be living together if they aren't serious about spending the future together. Yeah, people live together to save money, but considering the countless cases that went to court under the old law, this law will save the court system some money and will get people to think carefully about living together.

People tend to think that lawyers and policy makers in Victoria operate in a vacuum. The reality is that a law like this is carefully considered with many people and players consulted. Speaking from first-hand experience, no decisions get made without several rounds of consultations.

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so lets just for example say i get a good job and work 60 hours a week for 2 years to make 250k in that time, and my gf decides to quit her job and go back to school and take on student loans. i pay for housing, food, bills, etc, and she lives off credit while shes going to school. after a few years, it doesnt work out because she says im working too much and we break up. now shes entitled to half my shit and im stuck carrying half her student loan and personal debts?

This is a bit of a straw-man example. If it doesn't work out because you're working too much, wouldn't you break up before the two years are up? Or am I naive here?

She would be entitled to a portion of anything you acquire during the relationship which seems reasonable and fair to me. I personally don't agree with the sharing of debts, but I guess that's why in any relationship, you would need to make such decisions jointly.

My intention is not to get all preachy, but again, I think the whole point of the legislation is to get people to take a hard look at their relationships and to get people to think about their future. After all, we all suffer particularly if children are involved and cases get backed up in the courts. But, like I said, RS has a disproportionate amount of high-income earners that are men, so naturally, this group has the most to lose (particularly, if they have a fondness for women who like to live on credit.)

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Originally Posted by Great68 (Post 8166311)

No doubt, but I think couples would find out pretty quickly if they're not compatible (which is why 2 years is there.) Call me naive, but perhaps, the government compiled statistics on the average duration of common-law relationships and determined that 2 years is the average amount of time for common-law relationships?

I definitely agree that emotions are a wildcard in any relationship. But, you hear just as many stories about women getting screwed over by deadbeat men. Both parties have just as much to lose. On the other hand, I've never dated a bar star who blows her chain restaurant paycheque on booze and clothes; I've only dated university-educated women with no debts and steady paycheques.

Stupid law. You can't auto marry someone like that.