Tag Archives: Family Law Act

What is a marriage-like relationship?

Over the last number of decades, families and relationships have become increasingly more complicated, often making estate matters more complex and litigious. For example, when a person claims to be the spouse of a deceased, and the family, or other beneficiaries, either do not recognize them as a spouse or were not aware of a relationship at all, frequently litigation will be the result. Litigation will often take the form of a wills variation claim by the person alleging to be a spouse.

Under s.60 of the Wills, Estates and Succession Act (WESA), children and spouses of the deceased can bring a claim for variation if proper maintenance and adequate provision was not made for them in the will of a deceased. The first hurdle for these parties is to establish themselves as a “spouse”, entitling them to make such a claim. Under WESA, and the former Wills Variation Act, a spouse is defined as someone who was married to the deceased or had been living with the deceased in a “marriage-like relationship” and lived in that relationship for at least 2 years. How the law determines what is “marriage-like” therefore becomes quite important.

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New Family Law Act and Wills Variation Act Claim

The family law of British Columbia has gone through a major change as a result of the new Family Law Act, which replaced the Family Relations Act and became effective on March 18, 2013.

Under the old Family Relations Act, unmarried spouses are excluded from the operation of the property division and pension division sections, which are available for married spouses only. This means there is no automatic property sharing provisions for unmarried spouses.

As such, under the old Act, a common-law spouse can only rely on common law remedies in order to claim a share of the other spouse’s assets. For instance, a common-law spouse may claim that he or she has made a direct or indirect contribution to the accumulation of the assets of the other spouse such that he or she is entitled to a share of the assets, failing which, he or she may not share the assets of the other spouse.

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Expansion of the definition of “spouse” in the Family Law Act

On March 18, 2013, the Family Relations Act will be replaced with the Family Law Act. The new FLA introduces a new definition of spouse.

Under the current law, the FRA, a spouse is a person who: (1) is married to another person; or (2) lived with another person in a marriage-like relationship for a period of at least 2 years. Under the FLA, the same definitions apply, but a third category is created whereby a spouse is also a person who has lived in a marriage-like relationship (with no specified duration), if they have a child. This expansion only relates to spousal support obligations.

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Interests in discretionary trusts under the new Family Law Act

The new Family Law Act (the “FLA”) received royal assent on November 24, 2011 and is scheduled to come into effect in March of 2013.

The FLA introduces significant changes to the rules surrounding property division upon a marital breakdown. Under the FLA, “family property” is divided equally between the spouses, and includes all real and personal property owned by one or both spouses at the date of separation, unless the property fits within the definition of “excluded property”.

The definition of “excluded property” includes, among other things, gifts and inheritances, property acquired by a spouse before the relationship began, and property held in certain discretionary trusts. Despite the definition, this property isn’t exactly “excluded” as a family asset because any increase in the value of excluded property during the relationship is still shared equally between the spouses on a breakdown. 

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