It is not always clear, even between the spouses themselves, when a common law marriage came to a legal end.
The Courts have accordingly developed certain guidelines to assist them.
The test of whether a relationship is at an end is objective; W.A.S. v. D.W.T., 2003 BCSC 865, paras. 18-26; Eisener v. Baker, 2007 BCSC 83at paras. 32-37, Nathu v. Miller, 2009 BCSC 1155at paras. 64-68.
The issue of when the marriage-like relationship terminates in a common-law spousal relationship has recently been before this court in Markin v. Gysel, supra, and S. (W.A.) v. T. (D.W.) (2003), 40 R.F.L. (5th) 389, 2003 BCSC 865 (B.C. S.C.).
33 S. (W.A.) v. T. (D.W.) dealt with the breakdown of a long-term common-law relationship of approximately 20 years, in which both parties contributed financially and domestically, at least initially. The relationship was “fragile and uncertain” long before the couple separated, with Mr. T. developing serious drug and alcohol abuse problems at an early stage in the relationship. In relation to Ms. S.’s claim for spousal support, Groberman J. held that the court had no jurisdiction to grant such relief, because the application was brought seven weeks more than one year after the parties ceased to live together. Groberman J. also found that the parties had ceased to live in a marriage-like relationship long before the defendant physically moved out of their shared house. He stated at ¶21-23:
I reject the argument that the parties lived together after December 26, 2000. On that date, Ms. S. became aware that Mr. T. was having, and intended to continue to have, a romantic relationship with Ms. C. Ms. S. had clearly told him that he could not continue to live with her in those circumstances, and Mr. T. left. While Ms. S. may have had some hope that her relationship with Mr. T. could be resurrected, I find that there was no objective basis on which she could possibly have concluded that they were still living together.
In particular, I find that long before December 26, 2000, Mr. T. and Ms. S. ceased to have a marriage-like relationship. Aside from the pooling of financial resources, they had little to do with one another, and had very limited social interaction. They had had no intimate relations for over five years, and had not presented themselves as a couple to others for some time. Indeed, it is questionable whether the two were living together even before December 26, 2000, or were rather living separate and apart under the same roof.
34 S. (W.A.) v. T. (D.W.) was followed in Markin v. Gysel, supra. That case involved a four-year common-law relationship in which the parties had one child. After the man moved from the parties’ home, he voluntarily paid the woman $1,000 per month, plus expenses in relation to the home. With respect to when the parties ceased to live in a marriage-like relationship, Joyce J. held that the parties separated before the defendant actually moved out of the home. Although the parties continued to eat meals together and share the same bed for a time, the defendant had made clear his intentions that he did not want the relationship to continue, sexual relations terminated shortly thereafter, and he subsequently moved into a spare room before finally leaving the home.
35 Another relevant case is Thompson v. Floyd, 86 B.C.L.R. (3d) 56, 2001 BCCA 78 (B.C. C.A.). That case involved a common-law relationship that extended over a number of years. For health reasons, the plaintiff left the parties’ home and moved in with her family, although she continued regular communication and visits with the defendant. Despite the fact that the parties were physically separated, McEachern C.J.B.C. held that the trial judge had not erred in concluding that the marriage-like relationship continued, at least until the last time the couple had sexual relations. He noted that it was significant that neither party made a direct statement that they regarded the relationship to be over until the parties began discussing the sale of their home, a few months before the action was commenced (at ¶32).
36 Thus, it is clear from the cases that the point at which the parties ceased living in the same residence is not necessarily determinative of the date their marriage-like relationship terminated (see also Hughes v. Boyd, 2006 BCSC 1669 (B.C. S.C.) at ¶4, agreeing that the key issue is when the “marriage-like” quality of the relationship terminated, not simply when the parties ceased to live under the same roof). The key factors in determining when a couple have ceased living in a marriage-like relationship include the absence of sexual relations, a clear statement by one of the parties of his or her desire to terminate the relationship, physical separation of the parties into different rooms of the same house or different residences, or the couple no longer presenting themselves to the outside world as a couple. Additionally, the method in which the spouse filed income tax returns may be a relevant consideration (see Oswell, supra, at ¶7), and provides objective evidence of whether a person considered himself or herself to be involved in a marriage-like relationship.
37 In this case, Mr. Baker took clear action to terminate the marriage-like relationship on August 14, 2003. He moved his furniture out of the House and ceased to reside there. The parties ceased to have an intimate relationship at that time. He made clear that he did not want the relationship to continue. After this date, he was away most of the time. By October of 2003, Mr. Baker was making clear attempts to remove Ms. Eisener from title to the House. The plaintiff could not reasonably have believed that the relationship would continue after that point. Further, she identified herself as being single on her 2002 income tax return. Additionally, her behaviour in public and toward Ms. Rollin and Ms. Cousson contradicts her testimony that the parties remained in a marriage-like relationship until December 2004.