BC’s new Family Act redefines common-law

Recent changes to BC’s family law will have unexpected consequences for many queer common-law couples, warn two local lawyers.

Under the new Family Law Act, there will no longer be any difference between married people and common-law couples in BC, according to Vancouver family law lawyer Dennis Dahl.

Once common-law partners have lived together for two years in a “marriage-like relationship” they will have an automatic half interest in all property accumulated during the relationship and in the increase in value of all property brought into the relationship.

Additionally, both married and common-law couples will now be liable for half of all the family debts of their partner, including credit card debts, incurred from the time they started living together until the time they separate.

“There was a legal and personal distinction between the choice to be married and the choice to remain unmarried,” says Dahl. “What they’ve done now is taken that all away.”

“It would be one thing if the new law applied only to new relationships starting after [a certain] date. But in fact, for most of the people who it will affect, they will have already entered the relationship assuming the law was very different and that they either didn’t need an agreement or that they were protected based on whatever their personal interests were,” he adds. “Now it’s being imposed upon them.”

The BC Liberal government passed the new Family Law Act Nov 23, 2011, with Attorney General Shirley Bond calling it “a chance to put children first and keep families safe.” It replaces the Family Relations Act, which was originally implemented in 1978. Although no specific date has been announced, the new act is expected to take effect in 2013.

During debates for the new act last fall, Langley MLA Mary Polak suggested in the BC legislature that the new provisions for common-law relationships could inadvertently lead to higher marriage rates in BC.

“I’m told that common-law families in British Columbia are growing at a rate three times faster than the number of married couples. 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,” said Polak on Nov 17. “But certainly, there will no longer be the potential for financial advantage being taken through avoiding marriage.”

Family lawyer Agnes Huang understands the rationale for the changes to the law, but is concerned that the government is taking away people’s choices.

“The reason why they changed the property laws was often to deal with the fact that a lot of women were getting screwed by their common-law male spouses,” Huang says.

“When you start living together it’s a huge deal now,” she says, pointing out that for many gays and lesbians in long-term relationships, marriage became an option only in 2005. “We’ve all structured our lives without marriage being there, and essentially the state has now decided we’re married. And many of us, who are lesbian feminists, myself included, just don’t believe in marriage as an institution.”

Dahl agrees that many queer couples are common-law and remain intentionally unmarried by choice. Under the new act, common-law couples who don’t want to be subject to these new changes can opt out by drawing up a legal agreement setting out the terms of their relationship.

“It’s rare in my practice that common-law couples want that regime and automatic buy-in to property. They prefer to set it on their own terms, and almost never do they want an automatic sharing of property,” says Dahl. “[The new law] forces people to be proactive, to spend money and see lawyers to draft an agreement, when previously they may not have had to do so.”

Dahl stresses that aside from the changes to common-law relationships, the act is largely positive. He points to the act’s redefinition of who can be called parents, specifically accommodations that have been made for families using assisted reproduction. Under the new law, sperm or egg donors will have no legal liability or responsibility, unless all parties specifically say otherwise in a written contract. Female surrogates will also be able to sign a contract giving away their legal rights or responsibilities, before the child is born.

“It creates the possibility, for the first time in BC, of a multiparent family of up to as many as five people. Normally, the family law has only ever recognized two parents for a child upon birth, but in this act it could have as many as five,” says Dahl.

The potential five parents could include up to two “intended parents,” a sperm donor, an egg donor and a surrogate who carries the child. These multiparent families would be possible only when all parties have agreed in writing.

Huang believes that this new provision is a good step but cautions about potential fallouts that will have to be addressed.

“The implications are much greater than just being named on a birth certificate. The questions will become, ‘How do you parent a child when you have three parents?’” Huang says, listing medical, schooling and religious concerns as just a few potential parenting issues.

“People may start out thinking, ‘We’re all friends,’ but things can turn,” she says. “People are going to have to have much more detailed agreements to understand what everyone’s roles will be. I think it creates a lot more complications.”