A common law agreement in BC is a written contract between two people who live together, or plan to, that sets out how they will handle property, debt, and support if the relationship ends. Under the Family Law Act, unmarried partners who have lived together for at least two years get nearly the same legal rights as married spouses, including a presumption that family property and debt are split equally.1Province of British Columbia. What Is a Spouse? A properly drafted agreement lets you replace those defaults with terms that fit your situation.
When the Default Rules Apply to You
Section 3 of the Family Law Act defines a spouse as someone who has lived with another person in a “marriage-like relationship” for a continuous period of at least two years.2BC Laws. Family Law Act – Section: Spouses and Relationships Once you cross that line, the property and debt division rules apply automatically. Nothing to register, nothing to file. The clock starts the day you began living together, and the consequences follow whether you knew about them or not.
Having a child together changes part of the picture but not all of it. A shared child makes you a spouse for spousal support purposes, but it does not trigger the property and pension rules.2BC Laws. Family Law Act – Section: Spouses and Relationships A partner with a shared child could claim spousal support after six months of cohabitation but cannot claim a share of the family home until the two-year mark.
You can also be legally separated while still living under the same roof. If one partner communicates a permanent intention to end the relationship and starts acting accordingly, a separation date can be set even if nobody has moved out.2BC Laws. Family Law Act – Section: Spouses and Relationships That date matters because it fixes when property values are calculated and when the limitation clock starts.
What You Can and Cannot Decide
Section 92 of the Family Law Act gives common law spouses broad freedom to make their own rules about property and debt. You can divide things equally or unequally, include items the law would normally exclude, exclude items that would normally be shared, or set specific valuations for particular assets.3BC Laws. Family Law Act – Property Division That flexibility is the whole point of writing an agreement.
Provisions people commonly include:
- How real estate, bank accounts, investment portfolios, and business interests will be split, instead of defaulting to 50/50.
- Clear identification of assets that belong to one partner alone, such as inheritances, gifts from family, or property owned before the relationship.3BC Laws. Family Law Act – Property Division
- Responsibility for mortgages, credit lines, and personal loans, so neither partner is caught out by the other’s debts.
- A pre-agreed method for one partner to buy out the other’s interest in the family home, including how and when the property will be appraised.
- Spousal support terms: fixed amounts, time limits, or a waiver, depending on the length of the relationship and each partner’s contributions.
Anything involving children sits outside your control. Parenting time, guardianship, and child support are always subject to the “best interests of the child” standard, and a court can override whatever you wrote if the arrangement no longer serves the child.4BC Laws. Family Law Act – Section: Best Interests of the Child Parenting provisions in a cohabitation agreement work as a starting framework, not as a binding contract.
The Excluded Property Problem
This is where most people’s understanding of “excluded property” falls apart. The original value of excluded property (an inheritance, a pre-relationship asset, a gift from a parent) stays with the owner. But any increase in that property’s value during the relationship becomes family property and gets divided.3BC Laws. Family Law Act – Property Division
Say you brought a condo worth $400,000 into the relationship, and it is worth $650,000 when you separate. The original $400,000 stays excluded, but the $250,000 in growth is family property subject to equal division. The same logic applies to investment accounts, business equity, and retirement savings that existed before the relationship but grew during it. A common law agreement can override this default by stating that growth in excluded property also stays with the original owner. For many couples, that single clause is the reason to write an agreement at all.
Financial Disclosure Comes First
No agreement survives a court challenge if one partner hid assets or debts during the drafting process. Section 93 of the Family Law Act lists failure to disclose significant property, debts, or other relevant financial information as grounds for setting aside the entire agreement.3BC Laws. Family Law Act – Property Division Disclosure is not a courtesy. It is the legal foundation the agreement rests on.
Both partners should exchange a full financial picture before drafting begins: real estate titles and current market appraisals, pension and retirement statements, business valuations, bank and investment account balances, and a list of all debts including mortgages, credit cards, and personal loans. Income documentation matters too. Recent tax returns, notices of assessment, and pay stubs establish each partner’s earning capacity, which feeds into any spousal support calculations. The goal is a clear snapshot of each person’s net worth at the time of signing, so there is a verifiable baseline if the agreement is ever challenged.
Formal Requirements for a Valid Agreement
Under section 92, a property agreement must be in writing, signed by both spouses, and witnessed by at least one other person. The same witness can observe both signatures.3BC Laws. Family Law Act – Property Division An oral promise about how you will split property is not enforceable.
For agreements that reach beyond property into things like spousal support, section 6 requires the agreement to be in writing, signed by all parties, and witnessed by at least one person who is not a party to the agreement.5BC Laws. Family Law Act – Section: Agreements Respecting Family Law Disputes Since most cohabitation agreements cover both, meet the stricter requirement: use a witness who is not one of the partners.
Independent legal advice, where each partner consults their own separate lawyer before signing, is not technically required by the statute. Skipping it is a gamble. One ground for setting aside an agreement is that a spouse “did not understand the nature or consequences” of what they signed. A lawyer explaining the terms and issuing a certificate of independent legal advice largely removes that argument. Two brief legal consultations cost far less than a court fight over whether the agreement should stand.
The signing itself should happen without pressure. An agreement signed under duress, or while one partner was in a vulnerable position, is exactly what a court will set aside.
How a Court Can Still Set the Agreement Aside
A signed, witnessed agreement is not bulletproof. Section 93 gives the Supreme Court of British Columbia power to set aside all or part of an agreement in two categories of circumstance.3BC Laws. Family Law Act – Property Division
The first category is about problems at the time of signing:
- Non-disclosure of significant property, debts, or other relevant information.
- Exploitation of the other partner’s ignorance, financial need, or emotional distress.
- A partner who did not understand the nature or consequences of the agreement.
- General contract defects such as fraud or misrepresentation that would make any contract voidable.
The second category applies even when the signing process was clean. A court can still set the agreement aside if it has become “significantly unfair” over time. In deciding, the court weighs how long ago the agreement was made, whether the partners intended it to provide certainty, and how much each partner relied on its terms.3BC Laws. Family Law Act – Property Division A 20-year-old agreement where one partner’s circumstances shifted dramatically is more exposed than a recent one both partners have been operating under. The court can also decline to intervene if the order it would make instead would not look meaningfully different from what the agreement already says.
The Two-Year Limitation Period After Separation
Section 198 of the Family Law Act gives a common law spouse two years from the date of separation to start a court proceeding for property division, pension division, or spousal support.6BC Laws. Family Law Act – Section: Limitation Periods Miss the window and the court loses jurisdiction to help you, however unfair the situation may be.
This deadline applies whether you are trying to enforce your agreement or challenge it. If you think your partner is not honouring the terms, or if you want a court to set the agreement aside under section 93, you need to file within two years of separation. The separation date itself can be contested, so document clearly when the relationship ended.
Updating the Agreement When Life Changes
Circumstances shift. One partner starts a business, the other receives a large inheritance, or the couple buys a home together years after the original agreement was signed. Section 7 lets the parties make a new agreement that replaces the previous one, in whole or in part.5BC Laws. Family Law Act – Section: Agreements Respecting Family Law Disputes The replacement should follow the same formalities as the original: written, signed, and witnessed. Revisiting the agreement every few years, or after a major financial event, keeps it current and reduces the chance a court will later find it significantly unfair.