Sunday, March 31, 2013

BC's New Family Law Act: Common-law partners have more rights

Common-law partners in B.C. now have more rights than they used to

By Louise Dickson, Victoria Times Colonist, March 30, 2013.

She lived with him for eight years, raised his children, cooked and cleaned.

“She did what good wives do,” said Victoria family law expert Trudi Brown. “But at the end of the day, she wasn’t a wife. She didn’t have a job anymore and everything was in his name. She didn’t know she wasn’t protected.”

When the couple split up, the woman, who was in her mid-40s, ended up with almost nothing. Her knowledge of her rights was typical of 90 per cent of the common-law couples Brown used to see in her family law practice.

“They were horrified to find out that they didn’t actually get the same [treatment] as married people,” Brown said. “I’ve been trying for years to get people to make agreements before they start living together. But lust and love get in the way. Nobody thinks this will happen to them.”

B.C.’s Family Law Act, which came into effect March 18, changed all that.

The new legislation gives couples who have lived together in a marriage-like relationship for two years or more the same rights and obligations as married couples. It’s designed to address unfairness in dividing property when common-law relationships end, said Brown, editor of The British Columbia Family Law Practice.

Justice Minister and Attorney General Shirley Bond said the act replaces legislation from the 1970's and addresses the needs of modern B.C. families as well as shifts in societal norms.

“It’s about providing fair rules for couples who split up and ensuring that those rules are crystal-clear at the onset of the relationship,” Bond wrote in a letter to the Times Colonist.

Under the new act, common-law couples keep the property they bring into the relationship. Gifts, inheritances, settlements and awards of damages are excluded and not divided upon separation. Only property and debt that a couple accrues during the relationship is divided.

“If you bring in $100,000, and he brings in $500,000, and at the end you have $1 million, he gets his $500,000 and you get your $100,000 and you split the increase,” Brown said. “Most people thinks that’s fair.”

The new act means common-law partners have some rights that they didn’t have before, she said. “They haven’t lost anything and they haven’t become married — because that’s a different thing. That’s a choice. It does say if the couple breaks up and can’t resolve what they need to do when they break up, then some things come into play that will help.”

Media coverage of the act has focused on young couples, content to live together, who resent being placed in the same legal situation as married couples.

But common-law couples can opt out of the property division rules if they make their own agreement. “What they have to do is write it out and both partners have to sign it in front of an independent person,” Brown said.

For the agreement to be valid, both partners have to provide full disclosure of their assets and liabilities.

Brown says the questions to ask are: What do both of you expect? Who’s paying for what? Is there an intention to have children? If so, who is taking time off for them? If you separate after you have children, what’s going to happen to the person who lost out because of their job?

Because couples may not have an answer for all these questions, there should be a provision to look at the agreement every few years or if they have children, Brown said. “Things change pretty dramatically, so you want to be able to say to the court — if it ever asks — ‘We looked at it and we were happy with it and we don’t want to change it.’ ”

Generally, people will see a lawyer for prenuptial agreements for two reasons: They’ve been divorced before, or their parents make them because they will receive a big inheritance. And it’s always a good idea to consult a lawyer. It’s not expensive and could prevent big legal bills, Brown said.

She predicts the courts will still have some big issues to deal with. For example, if someone brought a $500,000 house into the relationship years ago, and the house isn’t worth that today, how will the court deal with that?

“There are going to be some interesting issues we are going to have to worry about.”