Question: Are family assets divided differently upon separation if you are common-law and not married?
Answer: The 1867 British North America Act (BNA) created the legal framework of Canada, assigning different responsibilities or jurisdictions of activities to the Federal and Provincial Governments, as listed in sections 91 and 92 of the BNA eg divorce is a Federal responsibility but the division of family assets is a Provincial responsibility. Upon a marital separation in British Columbia, the 2013 Family Law Act (FLA) directs spouses to start with an equal share of the assets & debts acquired during their marriage.
However, some analysis is required including whether assets or debts can be “excluded”, and whether there are grounds for a different result than an equal share. For example, the FLA lists some kinds of assets that are excluded from the division, including all assets & debts either spouse had before their marriage.
It is often difficult to determine the values just before the marriage and the values at the end of the marriage - though the Court often divides as of the date of the trial which could be years after separation. If one of the spouses is ill or has a dramatically different income ability to save for retirement then a different share might be appropriate. Since 2013 at least, it does not matter if your marriage was common-law or same-sex, a formal church marriage, or otherwise.
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