Historically the law did not recognize the claim of a common-law spouse against the estate of their deceased partner. Indeed these relationships were not even recognized as legally enforceable in some jurisdictions. To this day, cohabitation still remains a criminal offence in parts of the United States.
Nevertheless more and more people seem to be cohabiting whether in heterosexual or same-sex unions. Certainly there seems to be less social stigma to the notion of unmarried couples living together. As well, many long term same-sex couples are now coming “out of the closet”. What is more, even the nature of traditional marriages has changed–many married partners living far more independently of each other than would have been considered “normal” 20 or 30 years ago.
Previously, depending on whether or not they had been legally married, there were significant differences between the rights of surviving partners to claim against the estate of their deceased spouse if not legally married they might have no rights at all.
Recent statutory changes have reduced these differences in British Columbia. In British Columbia statutes governing the passing of estate property, our legislature has significantly expanded of the definition of “spouse”. These new definitions include, in certain circumstances, common law spouses.
The relevant statutes include the Estate Administration Act (governing intestacies) the Family Compensation Act (creating a right of recovery for wrongful death) and the Wills Variation Act (creating a claim against the estate where the will has not made adequate provision for a spouse or child).
As we will see in this paper, these broadened definitions of spouse vary from statute to statute however all of them include both same-sex and heterosexual persons cohabiting in a “marriage- like relationship”. Depending on the statute in question, there are differing requirements for the length and duration of that cohabitation.
This paper will deal with the rights of a common law spouse under three statutes, namely the Estate Administration Act, the Wills Variation Act, and the Family Compensation Act.
This paper will focus on the criteria considered to determine whether or not a party has proven that he or she is a “spouse” within the meaning of the statute in other words whether or not he or she has legal standing to bring an action under the actin question.
Wills Variation Act
This act provides for claims against an estate where the deceased dies leaving a will but that will does not make adequate provision for the deceased’s spouse or children. In such a case, the Wills Variation Act permits the child or spouse to contest the provisions of the will and seek to have their inheritance increased. For the purposes of the Wills Variation Act, spouse is defined as follows:
“spouse” means a person who
(a) is married to another person, or
(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.
It is noteworthy that to prove one is a spouse within the wording of this definition, the cohabitation need not be continuing up until the time of the death.
The Estate Administration Act
The Estate Administration Act governs the passing of the deceased’s estate when the deceased dies intestate, i.e. without leaving a will.
For the purposes of this Act, the definition of “spouse” includes a “common law spouse” and a common law spouse is defined as follows:
“common law spouse” means either
(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or
(b) a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person’s death;
Thus for this Act, the period of two-year cohabitation must take place immediately before the other person’s death. In other words, if the common law spouses had separated prior to the death, then the survivor would not be entitled to claim a share on an intestacy no matter how long they had previously cohabited.
Assuming for the moment that the spouse can bring himself or herself within this definition, he or she will have the same rights as a legally married spouse. Under the terms of the current Act a spouse is entitled to the first $65,000 of the estate, plus a life interest in the matrimonial home and its contents as well as a share of the residue (1/2 or 1/3 depending on the number of surviving children).
Where there are no surviving children, then the surviving spouse will inherit the entire estate. If there is more than one surviving spouse then the spousal share will be divided between them as the court may determine is just.
The Family Compensation Act
This statute permits the spouse and children of a deceased person to bring an action for damages against any party who is responsible for the wrongful death of the deceased.
Under the provisions of the Family Compensation Act
“spouse” means a person who
(a) was married to the deceased at the time of death, or
(b) lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death;
Thus the common law relationship must have been of at least two years duration and must have ended no earlier than one year before the death.
What Is a “Marriage- Like Relationship” in Law?
In order to bring a spousal claim under any of the three statutes, the claimant must prove that he or she lived in a “marriage like” relationship with the deceased.
The question of whether or not a couple has been living together in a marriage like relationship is a matter of evidence. McEvoy v. Ford Motor Company (1988) B.C.J. 1757.
What this means, on a practical basis, is that it will be very important to canvass not only the documents but the surviving friends, neighbours, relatives, co-workers and other witnesses to see what important evidence they can bring to the table.
Many of the relevant cases deciding whether a “marriage like” relationship existed involve the alleged spouse in a dispute with the beneficiaries of any will (and in the case of an intestacy, with the next-of-kin).
In our socially fluid society there are a myriad of relationships which may or may not qualify as common-law relationships. Estate disputes require the court to closely examine the nature of relationships of the couple cohabiting.
For example, a particularly curious case in our office involved a man who had lived with a legally married couple for over 50 years. The woman apparently had sexual relations on a regular basis with one or other man. She had two children and although they were raised believing the husband was their father, it appeared that each man had fathered one of them. After the death of the woman, we argued that our client, the unmarried man, was also a spouse. The case was settled the case on that basis.
Another interesting example involved a successful businesswoman and rancher who died suddenly in a highway collision. Shortly after her death, her “ranch hand” suddenly announced that he had actually been her common law husband. As such, he wanted a good part of her large estate and brought a claim under the Wills Variation Act.
Our interviews with the Deceased’s family, friends and employees soon cast grave doubt on the claim “although the couple had briefly been lovers, it seemed that had long ended. Instead this ranch hand had been intimidating his employer and physically abusing her animals whom she dearly loved. The Deceased was a woman who lived alone many miles from town. She undoubtedly knew that she could be in great danger if she fired her ranchhand” he was a keen hunter with many guns and was an alcoholic and drinking buddy of many of her male neighbours.
The mystery of why this relationship continued was finally solved when we discovered her cousin, a man’s man humourously known in their large family as “The Enforcer”. The Deceased and her cousin had agreed that he would soon move up to her ranch to escort ranchhand man off the property and take over helping her with the ranch. She died days before his planned arrival.
As noted above, the key to these cases is often finding the necessary evidence to establish the true state of affairs. Needless to say, this case quickly settled.
Turning to the law, the oft cited decision of Gostlin v. Kergin (1986) 3 B.C.L.R. (2d) 264, (B.C.C.A.) is the starting point for determining whether or not a “marriage like relationship” can be proven. In that case the court was considering maintenance provisions for common law spouses under the Family Relations Act which contains a similar spouse incorporating the test of a “marriage like relationship”.
In determining whether or not a “marriage like relationship” existed, the court set out two discreet elements to be considered.
a) the subjective element – whether the couple saw themselves as life partners; and
b) the objective component – the couple’s interaction and interdependency.
Delivering the judgment of the court, Lambert J.A. said, at pp. 267-268
“I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.”
This quotation appears to focus on the subjective element i.e. whether or not the couple considered themselves to have taken on the obligations of husband and wife.
Where the subjective intention appears elusive, the courts may examine a number of objective factors. In Takacs v. Gallo (1998) B.C.J. 600 (BCCA) the court listed a number of relevant factors to assess this objective component. For example:
- Did the parties hold themselves to the public as committed to one another?
- Did the parties live under the same roof?
- Did the parties have sexual relations?
- Did the parties eat their meals together?
- Did the party share resources, financial or otherwise?
- Did the parties declare each other as dependents?
- Did they refer to each other in a manner consistent with a marriage like relationship?
Cohabitation does not necessarily imply a “Marriage Like” Relationship
Harris v Willie Estate 2001 BCSC 143 is noteworthy because the court clearly states that the mere fact of cohabitation does not prove a “marriage like relationship”
In this case, the Parrett, J. noted that the court should be very slow to impose on parties commitments which, by their conduct, they have clearly not intended to make. Here he found that the couple
- had maintained significant elements of independence,
- did not commit to a common principal residence,
- did not recognize or portray themselves as a family unit; and
- the man did not allow the woman full access to his financial resources.
In these circumstances Parrett, J. found that the relationship was not “marriage- like” and thus dismissed the claim.
Similarly Janus v. Lachocki Estate 2001 BCSC 1702 involved a claim under the Wills Variation Act. Here the claimant maintained that she had lived with the deceased in a common-law relationship for the last four years of his life.
In dismissing the claim the court considered that the parties:
- had maintained separate residences,
- did not generally refer to themselves as being married,
- were not generally regarded within their communities as being in a marriage like relationship,
- did not share their property or mingle their finances; and
- did not become economically dependent on one another.
The court held that while the parties had an affectionate and sexual relationship, they had not reached a level of commitment where they could be said to have committed themselves to lifelong financial and moral support of each other. On this basis the claim was dismissed.
Relationship of Permanence
Possibly the high water mark to date for successful common-law spouse claims is the case of Marszalek Estate 2007 BCSC 324. In this case the court found that the plaintiff was a common law spouse however it nevertheless dismissed her claim for damages for wrongful death because she had not proved causation of the injuries suffered by the deceased.
In its judgment, the court noted the following feature:
1) the couple had separate bedrooms
2) they maintained separate bank accounts
3) the plaintiff did not want to marry the Deceased, although he wished to marry her
4) the deceased had referred to her, in an examination for discovery, as “his landlady and friend, but not lover”
5) they had separate ownership of property
6) they did not refer to each other as spouses on various government forms
Nevertheless the court ruled the couple had been common-law spouses for the purpose of the statute. The court found that although their relationship was somewhat unconventional, their actions spoke louder than their words and by all of their actions this couple was committed to a relationship of permanence.
The court followed the test in Gostlin and found that if each of them had been asked at any time during the two years preceding the husband’s death, whether, if the other were to be simply disabled for life, they would consider themselves committed to lifelong financial and moral support of the other, both of them would have answered “yes”.
In future there will undoubtedly be many novel relationships advanced as “common-law relationships”. The fact patterns may vary from group relationships to long term same-sex relationships to secretive “housekeeping” relationships. Presumably many long term relationships, hidden because of religious, family, or social pressures, will be brought into the open.
Should this trend continue, most courts will likely avoid rigid approaches and instead take the flexible approach demonstrated in the Marszalek case. Nevertheless it remains clear that mere cohabitation, without more, will not be enough to convert the relationship into a common law marriage.