Script 148 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script explains your income, financial support and property rights in a common-law relationship. Topics covered include:

• your rights to social assistance, pension plan benefits, employment insurance benefits, medical and dental coverage, and coverage under ICBC insurance programs, 
• the responsibility for debts, 
• your right to financial support if you separate, 
• what happens to the property you acquire during your relationship, and lastly 
• why you should have a cohabitation agreement and a will.

Most of the information in this script applies to same-sex couples who live together in a marriage-like relationship, as well as to couples of the opposite sex.

Can you get income assistance while living common-law?
The welfare office (actually the Ministry of Employment and Income Assistance) treats you and your partner like a married couple as soon as you start to live common-law. When you apply for welfare or income assistance, they’ll look at the income and assets for both of you. If you get income assistance, you’ll get it at the rate for a couple or family, and not as two single people with dependents. If you’re under 19, you may be refused welfare, but you can appeal this decision.

Information about income assistance appeals is found on script 288.

What about getting benefits under a pension plan?
Pension benefits under Canada’s Old Age Security program are paid to Canadian residents over the age of 65. A Spouse’s Allowance is also paid to the partners of pensioners for partners between the ages of 60 and 65. To qualify for the Spouse’s Allowance as a common-law partner, you need to be living in the common-law relationship for at least one year. Some other pension plans also recognize common-law relationships.

For more information on Old Age Security benefits, refer to script 239 on “Elder Law, Elder Abuse and Seniors’ Rights.”

Can you get Employment Insurance benefits?
The Employment Insurance rules treat you and your common-law partner like you are married if:

• you have lived together for at least 12 months, or 
• you had or are expecting a child together.

So if your partner moves to another city or province, you can quit your job to go with your partner and still have the right to get employment benefits. Note, however, that you can be denied benefits if there’s no work at all for you in the new town.

Are you covered under your common-law partner’s medical and dental plans?
The BC Medical Service Plan covers common-law partners. There’s no requirement about how long you must have been living together. For other medical or dental plans or extended-health plans from an employer, ask at the personnel office about coverage for partners. Usually, a common-law partner and children can be covered under other medical plans.

What about auto insurance?
If you’re injured in an accident, you might be eligible to receive no-fault benefits paid directly to you under your partner’s car insurance with the Insurance Corporation of British Columbia (that’s ICBC). ICBC treats you as if you were married if you’ve been living together for at least two years.

For more information on this, refer to script 185 on “Insurance Benefits and Compensation for Accident Victims” and script 188 on “Making a Personal Injury Claim.”

Are you responsible for your partner’s debts?
If you sign for a loan, it’s your loan and your responsibility – not your partner’s. If your partner signs for a loan, it’s your partner’s responsibility. But if you both sign the loan, you are both responsible to repay the debt. This means that if your partner is unable or refuses to make the payments, you’ll be responsible, even if you got no benefit from the loan. But if you end up paying the loan on his or her behalf, you can apply to the court for an order that your spouse “indemnify” you or pay you back for the debt.

If you separate, can you get financial support from your partner?
Married people have a legal duty to support each other. But common-law couples only have the legal rights described in the Family Relations Act. Two things are needed before one partner in a common-law relationship is obligated to support the other after separation:

• you must have been living together as a couple for at least two years before the separation, and
• the partner who needs support must apply to the court within one year after the separation.

The Family Relations Act specifically says that these support obligations apply to same-sex couples as well as to heterosexual couples.

Note, however, that if you have an agreement between the two of you saying that spousal support does not apply to your relationship, the court will very likely give effect to this agreement.

For information on child support, refer to script 147 on “Common-Law Relationships: About the Children in Your Family.”

What rights do you have to property acquired during the relationship?
This is where there are the biggest differences between being married and living common-law. For legally married couples, the Family Relations Act applies. As a starting point, married spouses are entitled to an “equal division” of all family assets and property (including the house, car, bank accounts, etc.) regardless of who owns the asset. This 50/50 split can be reapportioned if a 50/50 division would be unfair.

But in a common-law relationship, the law looks at whose name the property is in and who put up the money to buy the property.

What you paid for is yours, what your partner paid for is his or hers, and what you both paid for is split between you according to the share that you put up. At present, common-law couples generally don’t have the same protection the Family Relations Act gives legally married couples.

However, if you and your partner made a cohabitation agreement about the ownership of assets – either during your relationship or after you separated – the Family Relations Act may be applied by a court if asked to consider whether the agreement is fair. If the court decides the agreement is unfair, it can change or vary the agreement. The law in this area is complex, so you would need to speak to a lawyer.

What about the law of “constructive trust”?
Even if you don’t have a formal cohabitation agreement, but you contributed to property owned by your partner, you may be entitled to a share of that property based on a “constructive trust” claim. To claim an interest in your partner’s property, you must show three things:

• there was an “unjust enrichment,” 
• there was a “corresponding deprivation,” and 
• there is no “juristic reason” for the deprivation.

What does this notion of “constructive trust” mean in ordinary language?
Consider the following example: Say John and Mary lived together for ten years. Mary bought a house in her name the year they moved in together, but John couldn’t afford to contribute to the down payment. However, over the next ten years, John put his pay cheques into a joint account with Mary, and the mortgage payments were taken from that account. He also built and paid for a new addition to the house. Then the couple splits up, and Mary claims that John isn’t entitled to an interest in “her” property. In this case:

• Mary was unjustly enriched, 
• John suffered a corresponding deprivation, and 
• There is no reason a judge can think of to let John suffer a deprivation.

John is therefore likely to be given an interest in Mary’s house.

The bottom line is this: even if property isn’t in your name, you may have a claim to some part of that property.

Note too that if you worked in your partner’s business, or you stayed home to look after the children while your partner worked and used the money he or she earned to buy property or acquire investments, you may be entitled to a share in that business, property or investments.

Why is a written agreement important?
If you and your partner can agree on how you want to handle your property and financial support rights, you can make a written agreement, called a “cohabitation agreement.” Signed at the time you move in together or later, a cohabitation agreement covers what goes on during the time you live together and may also cover what happens if you split up. A written agreement is a legal contract between you and your partner, and it’s the only way to be sure what your claims are to property and other benefits. Before putting anything in writing though, it’s a good idea for each of you to get independent legal advice. If you later ask a court to enforce your agreement, the judge will want to know this.

What if you have to go to court?
If you separate, you may have to go to court to sort out some of your support and property rights. Family Court is a part of Provincial Court, where you can settle many questions dealing with support for you and/or your children, plus custody and access. But Family Court can’t deal with property questions, and it can’t make orders about who will live in the family home. For this, you’ll have to go to Supreme Court, and you’ll need a lawyer.

For more information on Family Court, refer to script 110 on “Family Court.”

Do you need to make a will?
If you want to make sure your partner and children are taken care of after your death, you need to make a will. In your will, you can name a guardian who’ll be legally responsible for your children after you die. You can also say who you want your property to go to. You should encourage your partner to make a will too.

For more information, refer to script 150 on “Common-Law Relationships: What Happens When Your Partner Dies” and script 177 on “What Happens When You Die Without a Will.”

Where can you get more information?

• Read the booklet entitled “Living Together, Living Apart:  Common-Law Relationships, Marriage, Separation and Divorce,” published by the Legal Services Society of BC. It’s available on their website at www.lss.bc.ca under “Our Publications” in the left column. If you don’t have access to a computer, call the Law Line at 604.408.2172 for a copy.
• Refer also to the other scripts in this Dial-A-Law series.

[updated June 2008]

Dial-A-Law© is a library of legal information that is available:

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