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When Does a Marriage -Like Relationship Begin

In order to determine what property constitutes family property the court must first decide when the parties’ marriage like relationship began.

Section 3 of the FLA sets out when a relationship between spouses begins:

3(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

(3) A relationship between spouses begins on the earlier of the following:

(a) the date on which they began to live together in a marriage-like relationship;

(b) the date of their marriage.

 

Holistic Approach

 

Each relationship is different. A determination of whether a relationship is marriage-like at a given time requires a holistic approach and is often analysed by testing the expressed subjective intentions of the individuals against objective evidence regarding their lifestyle and interactions, including the presence or absence of indicators commonly accepted as behaviour society associates with a marital relationship: Weber v. Leclerc, 2015 BCCA 492 at para. 24, leave to appeal ref’d [2016] S.C.C.A. No. 19; Austin v. Goerz, 2007 BCCA 586 at paras. 58, 62; Dey v. Blackett, 2018 BCSC 244 at paras. 192–196.

 

Factors that have been considered in analyzing whether a relationship is marriage-like include:

– shared shelter,
-sexual involvement,
– personal behaviour,
-household services,
-social activities,
-economic support,
– financial integration,
-attitude and conduct towards children,
– how they presented themselves to the outside world: M. v. H., [1999] 2 S.C.R. 3 at para. 59, 171 D.L.R. (4th) 577; Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 at 381¬–382, [1980] O.J. No. 1904 (S.C.).

These factors are not to be applied as a “checklist” but are helpful to consider in the overall analysis: Dey at para. 193.

Living together is only one factor to be considered in determining when the parties’ marriage-like relationship began.

Discussions about a shared intention to move in together or purchase a property together may be consistent with the development of a marriage-like relationship between a couple.

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