When Does a Common Law Relationship End?

About eight years ago, the British Columbia legislature amended the definition of spouse in a number of different laws to give common law spouses similar rights to married spouses on the death of one of the spouses. But, unlike married spouses, common law spouses can’t divorce each other. This raises the question about when do common law spouses cease to be common law spouses.

In Gosbjorn v. Hadley, 2008 BCSC 219, Christine Gosbjorn lived in a marriage-like relationship with Terrance George Krompocker for twelve years. Mr. Krompocker had two adult children from his first marriage.

Ms. Gosbjorn and Mr. Krompocker had some difficulties in their relationship, and on February 18, 2006, Ms. Gosbjorn moved out of the house they owned together, and into a basement suite. She took some, but not all, of her possessions with her.

When they separated, Mr. Krompocker suggested to some people that the separation was temporary, and to others that it was permanent.

On February 24, 2006—six days after Ms. Gosbjorn moved out of the house—Mr. Krompocker died tragically.

He did not have a will.

Under Part 10 of the Estate Administration Act, if Ms. Gosbjorn was Mr. Krompocker’s common law spouse at the time of his death, she would be entitled to the first $65,000 and one-half of the balance of Mr. Krompocker’s estate. She would also be entitled to a life-interest in his share of the matrimonial home, and to the household furnishings. Mr. Krompocker’s children would be entitled to the rest.

If Ms. Gosbjorn was not Mr. Krompocker’s common law spouse, then his children would be entitled to his whole estate.

Under the Estate Administration Act, the definition of spouse in section 1 includes a common law spouse. The definition of common law spouse includes “a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person's death.”

Mr. Krompocker’s children argued that because he and Ms. Gosbjorn had separated before Mr. Krompocker died, she was not his common law spouse immediately before his death.

Ms. Gosbjorn argued that provisions of the Charter of Rights required the court to interpret the legislation in a way that treats legally married spouses the same way as common law spouses. She pointed to section 98 of the Estate Administration Act, which provides that unless the court orders otherwise, a spouse who had been separated for more than a year from the deceased was not entitled to a share of the estate of a person dying without a will. She argued that unless a common law spouse who had been separated from the deceased for less than one year is entitled to a share of the estate of the deceased, the effect would be to discriminate against common law spouses.

Madam Justice Gray distinguished between common law spouses who had merely separated, and those whose common law relationship had ended. Common law spouses who had ended their relationship are comparable to divorced spouses. Neither a common law spouse whose relationship had ended within one year of the deceased’s death, or a spouse who was divorced within a year of the deceased’s death, are entitled to a share of the deceased’s estate if the deceased did not have a will.

How do you determine if when the relationship has ended? Madam Justice Gray wrote that, “parties cease to live and cohabit in a marriage-like relationship when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is a settled one.”

In this case Madam Justice Gray found that “neither Mr. Krompocker nor Ms. Gosbjorn demonstrated that he or she had a settled intention to end the relationship.” Accordingly, Ms. Gosbjorn continued to live in a marriage-like relationship with Mr. Krompocker up to his death despite her move to a basement suite the week before his death.

Ms. Gosbjorn is entitled to a share of Mr. Krompocker's estate.