Family Law - barbara findlay Q.C.

Family Law

Family law is the set of laws that governs relationships or marriages, and what happens if they end. The laws that apply to same sex relationships are the same as the laws that apply to opposite-sex relationships.

Marriage and common law
Anyone over 19 can marry in B.C. With the consent of your parents, you can marry between the ages of 16 and 19.

If you don't marry, but live together with your partner, you automatically acquire rights and responsibilities after a certain length of time. Under federal law (for example, for the purposes of Canada Pension Plan survivor benefits, or to sponsor a non-Canadian partner to become a permanent resident) that period is one year. Under B.C. law (for example, to claim spousal or child support) the period is two years.

What is the difference between being married and living common law? Within a year, there will be no difference except that to end a marriage, you have to get a divorce. A common law relationship ends when you separate. This is an important difference, especially for same sex couples who come to Canada to marry. The divorce law requires that one of the two spouses live in a Canadian province for a minimum of one year before a divorce can be started - which can make divorce effectively impossible. Non-Canadian heterosexual couple who marry in Canada can apply for a divorce in their home country. But if same sex marriage is not permitted, divorce is not available to married lesbian or gay couples.

Currently, different rules apply to the division of property depending on whether you are married or common law. If you are married, "family property" (any property owned by either of you that has been used for a family purpose) is divided 50/50. It would be easy if that were the only rule - but it's not. There are a number of factors that a court can take into account which changes the proportions.

If you are living common law, the basic rule is that the purpose who bought the property owns it. However, if one person has contributed to the acquisition or maintenance of the property owned by the other, the contributing partner can be awarded a share of property owned by the other.

In both marriage and common law situations, it is very difficult to predict what a court would do in a particular situation, which contributes to expensive and acrimonious breakups. For that reason, it makes sense to create your own cohabitation agreement that spells out what will happen if you break up.

All other laws apply equally to married and common law partners. At the end of a marriage or a common law relationship, one of you may be eligible to claim spousal support from the other.

If you and your partner want children, you may have them by giving birth to them, or by adopting them. Lesbians may have children with sperm donated by someone they know, or with anonymous sperm acquired through a fertility clinic. Or they may adopt a child. Gay men may have a child with the help of a surrogate mother.

If the two of you have children - either children together, or children of one of you that you have both been looking after - both parents are liable to pay child support if the relationship ends. A child may end up with several parents or stepparents who are required to pay child support! The amount of support that a parent pays depends on her or his income, and is set by child support guidelines.

We are accustomed to thinking about 'family law' as being limited only to the laws that govern relationships directly. But at least 25% of the laws of BC relate to your family status - everything from pension benefits, to taxation of property transfers, to your right to sit on the board of a professional corporation owned by your partner. All of those laws apply equally to opposite and same sex relationships.

Copyright barbara findlay 2012 ©

Click on "Share" to let others know about this page