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

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.

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.”