Determining Spousal Status Can Be Difficult


The number of people in common law relationships has steadily increased over the years. While many couples may actively choose a common law relationship over marriage, others may do so inadvertently, making a decision to cohabite without really considering whether they are, or intend to be, in a common law relationship.

In the estate context, status as a common law spouse is significant. Under the Estate Administration Act, a common law spouse may be entitled to all or a part of the estate of a deceased who died without a will. Under the Wills Variation Act, a common law spouse may have a claim against an estate where the deceased did have a will but the common law spouse was not adequately provided for.

To qualify as a “spouse” under either statute, the person must have been living and cohabitating in a marriage-like relationship with the deceased for a two-year period. The difference between the two statutes is that under the Estate Administration Act, the two-year period must occur immediately before the deceased’s death.

In determining whether an unmarried couple is in a “marriage like relationship”, the courts will focus on whether the parties subjectively intended to live together in a marriage-like relationship. If asked, would the individuals consider themselves to be in a committed long-term financial and moral relationship? Various objective factors may also be considered in attempting to ascertain the intentions of the parties, such as the degree to which their financial and living arrangements are intertwined.

Under the Estate Administration Act, if a deceased dies without a will and leaves no children, the spouse (including a common law spouse) will inherit the entire estate. If the deceased does not have a spouse, then the parents of the deceased (or the survivor of them) are entitled to the estate. You can imagine that in some cases, this can create a dispute between the person claiming to be a common law spouse, and the family of the deceased, who would otherwise be entitled to the estate.

This was the case in the recent BC Supreme Court case, Souraya v. Kinch. The Court had to consider whether the plaintiff, Julie Kinch was the “common law spouse” of the deceased, such that she was entitled to his estate and the right to administer his estate. The deceased had no children but Ms. Kinch’s claim was contested by the deceased’s sister. The court had to determine whether Ms. Kinch lived and cohabitated with the deceased in a marriage-like relationship for a period of at least two years immediately prior to the deceased’s death.

This case demonstrates that the question of whether an unmarried couple is in a “marriage-like relationship” is not always easy to answer. Ms. Kinch argued that she had been in a more or less continuous relationship with the deceased for ten years prior to his death in 2009 and that they lived together in her apartment for several years prior to his death. The deceased’s family, who had no relationship with Ms. Kinch, disagreed. They argued that the deceased lived in his family home with his mother and sister from 1996 until his death, except for a one year period where he lived on his own. Relatives and friends testified that they regularly saw the deceased at the family home, they believed that he lived there, and that his personal belongings, such as furnishings and clothing were in the basement of the family home, which was his area of the residence. It was clear from the evidence that the deceased kept his life with Ms. Kinch separate and apart from his life with his family, making it difficult to reconcile the conflicting evidence and determine the true nature of their relationship.

Ultimately, the court found that Ms. Kinch had not proven that her and the deceased were common law spouses. The fact that the deceased maintained a separate residence, kept his personal and family life separate from her, and that the couple did not share financial commitments pointed to a lack of permanent or long term marriage-like commitment to each other.