Common-law spouses – married, single or “it’s complicated”?

The term “common law spouse” is often used to refer to a spouse who is legally recognized even though no marriage certificate was ever signed. Under certain rules in family law and estate law, the definition of spouse includes people who have been in a “marriage-like” relationship for two years or more. This definition is important, since being a spouse comes with rights. If a relationship ends, a spouse may claim spousal support and a share in the family property (which could include real and personal property, investments, and debt, and even pensions). In the estate law context, the spouse of a deceased person has standing to contest a Will that is not in their favour. If there is no Will, a spouse can apply to administer the deceased’s estate, and will be entitled to a share of the estate assets.

It’s not always easy to define “spouse”

Determining whether a relationship fits within the legal definition of spouse is not simple, and disagreements can arise. One recent example of such a disagreement is Jones v. Davidson, 2022 BCCA 31. In this case, Mr. Jones died without a Will while living with Ms. Davidson. Ms. Davidson applied to the Court to administer the estate as a common law spouse. Mr. Jones’ son stepped in and argued that Ms. Davidson was not his father’s spouse. While he agreed that the pair had been living in a marriage-like relationship when his father died, he argued that they had not been living that way for long enough to qualify Ms. Davidson as a spouse. The Court therefore needed to determine when the relationship had transformed from being a romantic “boyfriend and girlfriend” relationship to being “marriage-like”.

The Court acknowledged that this is a hard line to draw. Relationships are all different, and there is no single factor that defines a marriage. When evaluating a relationship, a Court can consider many things, including the couples’ shared responsibilities, finances, intimacy, and the way they present socially. The Court will also consider how the couple viewed their own relationship, and how that perception aligns with the other objective evidence. There have even been cases where couples who do not live together have been considered spouses, because they maintained other aspects of a loving and intimate marriage-like relationship. (See, for example, Connor Estate 2017 BCSC 978.)

What does the court consider?

In this case, Mr. Jones and Ms. Davidson were in a romantic relationship starting in February 2012. The Court noted some key events that demonstrated a change in the relationship from romantic to marriage like. Beginning in about April 2013, Ms. Davidson listed Mr. Jones as ‘stepfather’ on her daughter’s school registration documents, Mr. Jones updated his insurance to include Ms. Davidson and her daughter, and Ms. Davidson recoded her marital status on her tax return as “common law”. However, Mr. Jones died in March 2014. Since the marriage-like relationship existed for less than two years, Ms. Davidson was not a common law spouse.

The Takeaway

If you are worried that your relationship status might be open to interpretation, or concerned about the ramifications of being in a “marriage like” relationship, we recommend speaking to our team of estate and family lawyers for insight. We can prevent disagreements by ensuring that your plans and intentions are clear.