The provincial government's Family Law Act is "not about forcing unmarried, common-law couples into getting married," Justice Minister Shirley Bond said Thursday in a statement issued to "clarify some of the misconceptions" about the legislation.
Rather, Bond said it's about extending the property division rules of marriage to common law couples who've been together for at least two years and generally means they must split 50-50 property accumulated over the relationship.
"You keep what's yours, but you share what you accrued together as a couple," Bond said. "This means that property brought into a relationship, and certain property you might receive during your relationship, such as inheritances or gifts, are generally not divided upon separation, regardless of whether you are married or not.
"Only property and debt that a couple accrues together during their relationship is divisible. This is similar to many other Canadian jurisdictions."
The Family Law Act replaces the Family Relations Act which came into force in 1979 and its property division provisions applied only to married couples.
"A common-law couple could live together 20-plus years, and when they broke up the property would stay with whoever's name it was in. It would not be considered joint property and divided in half, as would be the case for married couples," Bond said.
"This resulted in complex legal cases and often great unfairness, usually to women, as the property was more often in the man's name."
Common-law couples will still be able to opt-out of the Act's property division rules through written agreements that "will allow them to divide their property as they see fit, with limited ability for the court to overturn the agreement," Bond said.
Common-law couples are already subject to many of the same laws as married couples, Bond added, "such as those around income tax and wills and estates. Also, under the old Family Relations Act, common-law couples could seek spousal support."
University of Victoria law professor Gillian Calder noted that the federal Divorce Act will continue to be the main legislation for married couples going through separation and divorce. Those in common law relationships that are breaking down do not get divorces, she said, so the Divorce Act does not apply to them.
"Marriage is still part of the definition of spouse, so there are aspects of the Family Law Act that apply to married people but generally speaking, if your marriage is breaking down, it would be the Divorce Act that would govern," Calder said.
