How Prove You Are NOT in a Common Law Relationship | Common Law Lawyers
As common law lawyers, we get numerous inquiries from couples who have disputes over whether they were common law or not. We also get a lot of inquiries from people wanting to enter into an agreement with their partner stating that they are NOT in a common law relationship.
The main reason for both scenarios is because once you are common law or a ‘spouse’ under the Family Law Act, you get all sorts of rights and obligations which may mean fortunes gained or lost in the family law context. So it is very understandable that people would want to protect their assets by agreeing or proving that they never were, and never will be common law.
So how do you prove you are not in a common law relationship?
Proving No Common Law Relationship Through Agreement
Many people think if they enter into an agreement confirming they are not common law, the agreement will be effective and they do not have to worry about anything else. This is not true. Our BC courts have said that the subjective intentions of the parties do not determine whether they are objectively common law.
In short, entering into a simple agreement stating you are not common law is not enough to protect your rights and your finances in the future.
Let’s look at a case that dealt with a common law agreement and what the judge said about it.
The Tale of the Professor and the Stunt Driver
The case of Hudema v. Moore, describes the troubled relationship between Ms. Moore who is a university professor and 60, and her ex-partner, Mr. Hudema, who is 40 and a stunt driver:
- The parties met at a motocycle class and quickly began dating;
- Ms. Moore was already going through a divorce with her first husband after 23 years of marriage;
- Ms. Moore didn’t want more trouble. So she suggested that she and Mr. Hudema enter into an agreement confirming they are not in a common law relationship; that way she could protect her assets from division if her relationship with Mr. Hudema didn’t last;
- Mr. Hudema moved into Mr. Moore’s property and they entered into a tenancy agreement where he’d pay her $800 per month;
- Sometime after they moved it, an agreement was drafted by Ms. Moore’s lawyer. Mr. Hudema showed the agreement to his own lawyer who strongly advised him not to sign it;
- Mr. Hudema decided to sign the agreement anyway, reasoning that he was under duress, was pressured and had taken too much ‘abuse’ from Ms. Moore to the point that he basically gave in;
- A year later, the parties separated.
- Mr. Hudema sued Ms. Moore in the family court, asking for some of her property and for the judge to invalidate the agreement.
The Result – No Common Law Marriage
The judge began his analysis by saying the following:
 As a starting point, I see nothing wrong in principle with an agreement that confirms that the parties, although residing together, do not consider themselves to be in a marriage-like relationship and agree that they will not pursue a claim against the property of the other after the relationship ends. It is possible for individuals to live together interdependently and continuously without establishing the type of union that constitutes a marriage-like relationship: Voth at para. 14. It is reasonable for parties to desire certainty and predictability in their relationships, including the certainty that comes with a mutual acknowledgement that they do not consider themselves to be spouses and a mutual promise that each party will not claim against the other’s property.
 However, an agreement that states the parties’ subjective belief that they are not in a marriage-like relationship does not determine the factual question of whether they are, in fact, spouses within the meaning of the FLA….
On the facts of this case, however, Ms. Moore was successful in enforcing the agreement. A few points in particular contributed to her success:
- The absence of any children;
- The short-term nature of the relationship—the parties knew each other for three years;
- The agreement was signed one year before any “separation” occurred, so was relatively fresh;
- There does not appear to have been any significant financial intermingling;
- The judge found there was no duress;
- The agreement indicated that there would be no entitlement even if there was a relationship;
As a result, the issue was able to be resolved by way of summary trial, a considerably less expensive way of resolving things than a normal trial.
In this case, there was a big warning in that if the person seeking to set aside the agreement had ignored legal advice, then he couldn’t try to fix the situation after he went against such legal advice. Therefore, is important that you find a lawyer whose advice you trust and will follow.
Also, hypothetically, if the relationship was marriage-like, it is important that when people sign documents like cohabitation or pre-nuptial agreements, that they not operate under the assumption that they will never need to use it or that the other person will deal with them more generously than required by the agreement.
If any of those were different, this may well have had a different result. If their dating relationship had lasted 15 years, for example, this kind of agreement would almost certainly have been less effective than a cohabitation agreement.
For people in relationships that are considered likely to be short term, with no kids or significant financial intermingling, this kind of agreement has now been held to be effective. It is the kind of thing that appears to work very well when it works, and is useless when it does not.
- It is always a good idea to combine these agreements with cohabitation agreements in case the former is found not to be effective.
- It is always better to agree that there is no cohabitation but if the judge finds cohabitation, how assets should be divided;
- Always and always obtain legal advice;
- Always have your lawyer draft and negotiate your agreements instead of doing them on your own, because if you do, you will have a high chance of having them cancelled;
To learn abut How to Prove Common Law relationships, click here.
At YLaw, our award winning common law lawyers know of all the loops and holes of cohabitation and common law agreement. Contact us for a consultation to learn how to navigate your unique situation.