Married or Common Law Marriage? What Happens after Breakup: Divorce, Child Custody and Child Support
By: Michael J. Velletta, Barrister & Solicitor ()
This outline is prepared by Michael J. Velletta, a lawyer practicing in the area of Canadian family law. This free legal advice is selective, and for discussion purposes only. It is not legal advice. Do not apply any of the information set out in this outline without first discussing it with your lawyer.
Summary of Article:
The following is a discussion by Michael J. Velletta of divorce laws in British Columbia after a legal or common law marriage, including division of assets or property, child custody, child access, child support, and spousal maintenance or alimony.
Division of Property on Breakup of Marriage
If you are married, on a breakup of your relationship there is a presumption that each spouse in entitled to half of the "matrimonial assets". Not all assets owned by the spouses, however, are "matrimonial assets". Assets not used in the marriage may be excluded from the division.
While there is a presumption that the matrimonial assets are divided equally between the spouses, a judge has power under the Family Relations Act of British Columbia to award an unequal division of assets in certain circumstances. For example, assets may be divided unequally in order to promote or maintain the self-sufficiency of one of the spouses, or in the case of a short marriage, an unequal division favoring the spouse that brought the asset to the marriage. So, although when married there is a presumption that property be divided equally between the spouses, there is a complex array of legal considerations that may result in an unequal division. Your lawyer can give valid legal advice on how best to achieve the division of property you believe fair following the breakup of a marriage.
Division of Property on Breakup of Common Law Marriage
In a common law relationship there is no presumption of joint ownership of assets, or automatic entitlement to a share in the other spouses assets. In certain circumstances, where one spouse makes a contribution to an asset owned by the other spouse, and that spouse is unjustly enriched by that contribution, it may be possible to establish a "constructive trust" under which some entitlement may exist. This is a very complex area of the law and you should seek legal advice concerning it.
Child Custody
When deciding on custody of children, the predominant concern is the best interest of the child. Typically, an award of custody by the court is made either solely to one parent, or jointly to both parents.
A joint custody arrangement is preferable where the parents, can in effect, set aside their differences, at least in so far as the child is concerned, and work together in the best interests of the child. The child may live approximately equal amounts of time with each parent or predominately with one parent in a joint custody arrangement. In this sense joint custody refers more to the involvement and responsibility of the two parents in rearing the child, rather than the place of residence of the child.
In cases where the parents can not work together in the best interests of the child, an award of sole custody to one parent or the other may be preferable. The court always considers the best interests of the child when making this decision.
Proper custody arrangements for your child are critical. Consult your lawyer to help obtain the best result for your child.
Child Access
In all but a very few extreme cases, the non-custodial parent will have access to the child. Generally, the court believes that maximum, unfettered access is the best. Still, as there are frequently difficulties between the parents or dangers for the child, specified or scheduled access is often ordered.
If you cannot obtain appropriate access arrangements for your child discuss the options with your lawyer.
Child Support
Natural parents of children are required by law to support their children, whether they have custody, access or not. Under the Family Relations Act of British Columbia, a person becomes a stepparent of a child if they are, or were married, or lived together in a marriage-like relationship with a parent of the child for a period of at least 2 years and, the marriage-like relationship may be between persons of the same gender. The Family Relations Act goes on to state that a "Stepparent" of a child is obligated to pay support if the stepparent contributed to the support and maintenance of the child for at least 1 year and a proceeding under the Family Relations Act is made by or against the stepparent within 1 year after the date the stepparent last contributed to the support of the child. So, while all natural parents of children (and adoptive parents) are responsible to support their children, stepparents, in certain circumstances may become obligated to support a child.
How Child Support is Calculated
The federal government of Canada enacted guidelines setting out in detailed tables the amount a parent or stepparent is liable to pay in child support. Combined with the guidelines are a variety of Rules, Regulations and Statutes interpreting and varying the amount set out in the tables. This is a complex area of the law, so good legal advice is very beneficial.
Spousal Support
Under the Divorce Act (Canada) and the Family Relations Act of British Columbia, married persons are obligated to provide spousal support or alimony upon the breakup of their marriage. Similarly, under the Family Relations Act of British Columbia the definition of spouse is expanded to include unmarried persons, whether of the same gender or not, who live together in a marriage like relationship for a period of at least 2 years, thus falling under the regime of spousal support contained within the act.
While there is an obligation to support a spouse following a breakup, spouses also have a corresponding duty to become and remain self-sufficient. There is, therefore, the obligation to support a spouse, pitched against that spouse's duty to become and remain self-sufficient.
When assessing the matter of entitlement, first the courts will look at the ability of the spouse applying for maintenance or support to support themselves, keeping in mind a variety of statutory considerations. If the spouse requesting support has available to them the practical ability to support themselves at an appropriate level, the court will not likely award support. If the spouse seeking support has the ability to become self-sufficient, the court may award support for a fixed period of time, in an appropriate amount, to allow the spouse seeking support the opportunity to become, and remain self-sufficient. Finally, through illness, disability, circumstances such as the primary responsibility for the care of young children, or the un-likely prospect that the spouse seeking support will become and remain self-sufficient, an order for regular, periodic support may be made.
Occasionally the obligation to support a spouse can be partially or fully discharged through a single lump sum payment, or the transfer of a significant asset. In other cases, the court looks carefully at the income and expenses, or means and needs of the parties to assess an appropriate level of support.
The law of spousal support is extremely complicated. There are long lasting or permanent financial consequences to both parties. In addition, while child support is neither tax deductible by the payer or taxable by the recipient, spousal support is subtracted from the income of the payer and added to the income of the recipient. Therefore, tax considerations must also be carefully weighed. One must also consider the impact of lump sum payments or an unequal division of assets, as well. It is therefore prudent and wise to bring together a team of experts, such as skilled and knowledgeable legal counsel and accountants to fully assess a claim for spousal support.
Conclusion
So, from a legal perspective, the biggest difference facing married and common law spouses on breakup is the presumption in marriage of an equal division of family assets. Common law spouses have no automatic or presumptive entitlement to the assets of their common law spouse.
While a couple with few assets, no children and each is self-sufficient the legal issues they face on breakup are few, and if they are practical can typically be resolved amicably without the intervention of legal professionals or the courts. However, if there is significant property to be divided between the spouses, children, child or spousal support issues, it is essential that the parties know their rights and obtain proper legal advice. The long lasting impact of decisions made following breakup, tax consequences and financial commitments make proper advice a necessity.
Velletta & Company strives to deliver practical advice that reduces the animosity between the parties. By carefully identifying your objectives, assessing the implications, and focusing the dispute on critical, important areas, a mutually satisfactory, cost-effective resolution is frequently obtained. Where the other spouse is impractical, needlessly combative, greedy or disregards the rights and obligations concerning child custody, access or maintenance, or is acting contrary to the best interests of the child, effective, court ordered resolutions can be achieved by experienced lawyers. If you are facing the breakup of your marriage or common law relationship and have further questions, please contact our office.
