In BC, you are considered common law under the Family Law Act after living in a marriage like relationship for 2 years. However, if you have lived together in a marriage like relationship for any amount of time (even less than 2 years) and you have a child together, you are considered common law for the purpose spousal support only.

If you lived together in a marriage like relationship before getting married, the law says your spousal relationship began on the day you began to live together.

When your spousal relationship began is important, particularly for property division, as all property and debt acquired during the spousal relationship may be divided between spouses according to the law.

Even if you are not considered a spouse, certain aspects of family law may still apply to you, particularly if you have children or there are protection concerns.

Separation

There is no such thing as a “legal” separation. You do not need to apply for anything in court to be separated. A married couple or a couple living in a married like relationship are separated when at least one of them decides to separate and stop living together. This often looks like one person moving out of the residence, but not always. Sometimes people will continue living under the same roof after separating. They may sleep in different beds, not eat meals together, and not attend social functions as a couple, for example.

It is very important to make clear the date you separated, particularly if you continue to live under the same roof, as property or debt acquired up until the day you separate may be divided between spouses.

Divorce

A divorce is a court order that ends a marriage. If you are married, you cannot marry someone else until you get a divorce, no matter how long you and your ex have been separated.

Only legally married couples can get a divorce. If you were married outside of British Columbia, BC Courts will generally (but not always) consider your marriage legal if it is considered valid in the province, territory, or country that you got married. You can get a divorce in British Columbia if you or your spouse has lived in British Columbia for at least a year before applying for a divorce and you meet all the other divorce criteria.

You can only get a divorce if there has been a “breakdown of the marriage”. A breakdown in marriage can occur in one of three ways:

1. You and your spouse have been separated for at least one year with no chance of getting back together. The one-year period is not interrupted if you get back together for 90 days or less and then separate again. If you get back together for more than 90 days and then separate again, the one-year period will restart.
2. You or your spouse committed adultery (had sexual relations with someone else while you were still in a relationship).
3. Either spouse treats the other cruelly.

You would have to prove adultery or cruelty in court which can be complicated, so most people simply wait a year and apply under option 1.

If you have children, a judge will not grant you a divorce order until they are satisfied that you have made reasonable arrangements to take care of the children, including adequate child support.

You can file some of the documents required to get a divorce with the BC Supreme Court before you have been separated a full year, but the registry will not finalize your divorce until at least one year has passed.

Alternatives to court

In BC, most separating spouses can work out agreements about the key issues without having a trial. Some may have made an agreement on the issues prior the breakdown of the relationship, such as a prenuptial or cohabitation agreement. Many will work out agreements after they have separated, usually called separation agreements. If you are married, you will still need the Supreme Court to grant you a divorce order but coming to an agreement on all the other issues will significantly speed up the process.

You and your ex may be able to work out agreements on your own, or you may need help. There are many types of services to assist separating couple come to an agreement including:

• Mediation,
• Lawyer-led negotiation,
• Family Justice counsellors, and
• Collaborative family lawyers.

See the Family Law Guidebook: Legal Help Services.

If separating spouses are not able to reach agreement, they need to file court documents and a judge will make decisions to settle their family law disputes. This is an expensive, stressful process, and tends to increase conflict levels between separating spouses. Studies have shown that a conflict-based divorce is one of the most stressful things in life and that it is bad for the health of both parties. Children of separating spouses tend to suffer significant harm when involved in a long, high conflict separation.