Victoria feature: Marriage without consent

Couples entering cohabitation and those leaving relationships have things to think about under new Family Law Act

Couples moving in together may want to consider cohabitation agreements if they haven’t taken the step of marriage.

Mamata Kreisler and her boyfriend are like many modern couples.

They’ve lived together for the past two years, share a French Bulldog-Boston Terrier cross and recently bought a house in Saanich together.

They each have debt, prefer to keep separate bank accounts and, perhaps most tellingly, have trouble saying exactly when their dating life began.

“He was living with me and my roommate, sleeping on a couch, and then we started dating about six months later,” she said.

But as of Monday, Kreisler and her partner now inadvertently hold a legal label they thought was years away from reality: married.

The new B.C. Family Law Act provides sweeping changes that will affect many of the 15,000 cohabiting couples in the Capital Region and more than 160,000 couples in the province.

“If you have lived in a marriage-like relationship for at least two years, the law now considers you a spouse,” said Christine Murray, a partner at Victoria-based Cassels-Murray Family and Estates Law.

For the first time, common-law couples are subject to the same legal rights and responsibilities of married couples.

If a couple separates, any gains in assets or debt incurred during the relationship are now split down the middle, regardless of which partner owns them.

“That property includes real estate, personal property, bank accounts, generally anything with value owned by one or both spouses at the date of separation,” Murray said.

Property acquired before the relationship began, as well as gifts, inheritances and damage awards will still be protected from equal division.

“If it is a couple’s intention to keep their property separate, they’ll have to enter into a written agreement to make sure they can have their intentions carried throughout their relationship,” Murray said.

Some questions, such as whether or not both partners are responsible for the depreciation value of a home, will have to play out in court, she added. It could also be difficult to prove when a relationship began, as Kreisler and her partner illustrate with their roommate-to-romance situation.

“It’s not a clear-cut, black-and-white test,” Murray said.

Despite the confusion for common-law couples, the Family Law Act is considered a progressive piece of legislation, extending property rights and child protection measures to B.C. families who are more commonly choosing not to get married. It also encourages couples to pursue non-court agreements for dispute resolution through arbitration, where the success rates can be as high as 80 per cent, said Keri Boyle, executive director of Mediate B.C.

“You can go to court and have a judge tell you what the result is, or you can try a different process, which, in my experience, is going to be cheaper,” she said.

Mediation and other forms of collaborative law can also preserve relationships more effectively than court battles, Boyle added.

“Success needs to be measured by more than resolving the issues. If a couple comes out of the process with a relationship intact, that’s much better for their children.”

Time will tell whether the revised laws will ease the burden on the justice system, but Murray hopes couples will begin to have serious discussions early.

“Maybe it will be a good thing and people will think about their living situations at the front end of their relationship, so they don’t have to do as much heavy lifting if that relationship ends.”

Kreisler isn’t concerned with how the law chooses to label her relationship, and the idea of a cohabitation agreement doesn’t make sense to her.

“I understand prenuptial agreements if one person is really rich and one isn’t. It could be a concern going into a marriage,” she said.

“But that’s not something either of us are worried about.”

Learn more about the Family Law Act here.

dpalmer@vicnews.com

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