TN 6 (08-18)

A. PR 15-198 - A Marriage-Like Relationship in British, Columbia, Canada

Date: September 18, 2015

1. Syllabus

In British Colombia, Canada, couples in marriage-like-relationships for longer than two years can be considered to be in a common-law relationship. These marriage-like-relationships have the same status as spouse for intestate inheritance. Since the claimant is in a marriage-like-relationship with the number holder, the agency can deem the claimant entitled for Title II spouse’s benefits.

2. Opinion

QUESTION PRESENTED

Whether a couple residing in British Columbia, Canada, can satisfy the relationship requirement for purposes of spouse’s benefits based on a marriage-like relationship?

SHORT ANSWER

Under the law of British Columbia, a partner of a NH in a “marriage-like relationship” for longer than two years could have the “same status” as a spouse of the NH, for intestate inheritance purposes. Therefore, if the agency is satisfied that the evidence presented shows that a couple has lived in a marriage-like relationship for longer than two years, the agency can deem a couple as married for social security purposes.

SUMMARY OF EVIDENCE

The claimant, D~, filed for spouse’s benefits on the record of the NH, J~. As part of the claim, the claimant and the NH each completed a Statement of Marital Relationship. According to the claimant and the NH, they were in a marriage-like relationship since June 1992. They lived together in Kaslo, British Columbia, Canada since 1992. They never married, but they considered themselves in a “common law relationship.” On the claimant’s and NH’s separate Statements of Marital Relationship, each allege that they have a joint bank account, a shared mortgage, and filed joint tax-returns.¹ In addition, two brothers of the couple submitted statements saying they considered the couple married since 1992.

ANALYSIS

I. Social Security Law

To be entitled to spouse’s benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “husband” or “wife” of an insured NH.² See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of an insured who is domiciled outside the United States. First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Here, the NH and claimant allege that they have a common-law relationship, not a ceremonial of common-law marriage. Therefore, we do not have to determine whether a valid marriage exists. Instead, we must examine whether the claimant can be deemed to be the insured’s wife in accordance with the Act. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Validity of Relationship Under the Law of the District of Columbia

Because the NH resided in British Columbia, Canada, at the time the claimant applied for benefits, we apply District of Columbia law to determine whether the claimant may be considered (deemed) to be the NH’s wife. SSA will deem the claimant to be the NH’s wife, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widower of the NH with respect to the taking of such property, if the NH were to die. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As previously noted, the claimant and the NH lived together in British Columbia, Canada. Accordingly, to determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property, we apply the law of British Columbia, Canada.³

British Columbia’s Estate Administration Act, and the subsequent Wills, Estates, and Succession Act, which came into force on March 31, 2014, provide the rules for intestate succession.⁴ The Estate Administration Act’s definition of spouse included “common law spouse,” which meant either:

(a) A person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

(b) a person who has lived and cohabitated with another person in a marriage-like relationship, for a period of at least two years immediately before the person’s death.

Estate Administration Act, S.B.C. 1996, c. 122, pt. 1, available at

http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-122/104764/rsbc-1996-c-122.html#Part_1_General_498. The Wills, Estates and Succession Act does not refer to “common law spouse,” and instead states, “2 persons are spouses of each other for purposes of this Act if they were both alive immediately before a relevant time and (a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.” Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at

http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01#section2.

The expression “marriage-like relationship” is found in a number of British Columbia’s statutes that deal with the rights and obligations of unmarried couples. British Columbia’s Court of Appeal has held that the expression should be interpreted the same across statutes in “all cases where it is used to describe the status of two persons who have chosen to live together in a certain way.” Austin v. Goerz (2007) 74 B.C.L.R. 4th 39, para. 32 (Can. B.C. C.A.), available at https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca586/2007bcca586.html?searchUrlHash=AAAAAQA0bWFycmlhZ2UtbGlrZSByZWxhdGlvbnNoaXAgY29tbW9uIGxhdyBHb3N0bGluIFRha2FjcwAAAAAB.

Thus it appears that under the law of British Columbia, a partner of a NH in a “marriage-like relationship” would have the “same status” as a widower of the NH with respect to the inheritance of the NH’s intestate personal property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The legal test for determining whether a particular relationship is “marriage-like” is whether it was the parties’ subjective intention to be in a “marriage-like relationship.” Gostlin v. Kergin (1986), 3 B.C.L.R. 2d 264, page 5 (Can. B.C. C.A.), available at https://www.canlii.org/en/bc/bcca/doc/1986/1986canlii164/1986canlii164.html. In Gostlin, the Court stated:

If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.

Id. at 5. However, the Court notes that sometimes ascertaining intention can prove difficult in particular circumstances, in which case objective factors can be relied upon:

Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

Id. at 6.

The Court enunciated additional factors indicating a “marriage-like relationship” in Takacs v. Gallo (1998), 48 B.C.L.R. 3d 265 (Can. B.C. C.A.), available at http://www.canlii.org/en/bc/bcca/doc/1998/1998canlii6429/1998canlii6429.html. In that case, the Court held that courts must focus first on the intentions of the parties to live in a marriage-like relationship, using objective factors to divine those subjective intentions. Id. para. 53. The Court noted that although the parties may not explicitly acknowledge that a marriage-like relationship exists, “conduct speaks louder than words.” Id. para. 40.

Objective factors that may be relevant in determining the parties’ intentions are seldom determinative in and of themselves; many people who live together, and meet many of these objective criteria, do not actually intend or enter the kind of psychological and emotional union generally associated with marriage. Id. para. 55. Therefore, courts must recognize the uniqueness of each relationship and apply a flexible approach when considering the various objective criteria provided in the authorities. J.J.G. v. K.M.A. (2009), 71 R.F.L 6th 349, para. 37 (Can. B.C. S.C.), available at https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1056/2009bcsc1056.html.

II. The Claimant’s Application

The claimant and the NH stated that they had a marriage-like relationship that lasted for much longer than the two-year period required under the law. They lived together since 1992 and held themselves out as husband and wife. The claimant and NH each stated that they comingled finances, jointly owned real property, and filed taxes together. However, it does not appear that SSA requested any documents to support these allegations. In addition, a brother of the claimant, and a brother of the NH each submitted a Statement Regarding Marriage. Both brothers stated that they considered the couple husband and wife. In addition, M~, stated that the couple co-owns their homes and share finances. He also stated that he sees the couple three or four times a year, at family gatherings and holidays. M2~ stated that he always referred to claimant as his sister-in-law. Therefore, if the agency is satisfied that the statements of the claimant, the NH and the brothers are sufficient (without additional supporting documentation such as bank, mortgage or tax records), we think this evidence could show that this couple had a subjective intention to be in a marriage-like relationship and therefore the agency can find the couple in a common-law relationship under the law British Columbia. Accordingly, the couple could be deemed married under the Act, and the claimant would be considered the NH’s wife for benefit purposes.

CONCLUSION

Under the laws of British Columbia, Canada, a couple in a marriage-like relationship would be considered in a common-law relationship and thus could inherit as spouses for purposes of intestate succession. Thus, the agency could deem such couple as married for social security purposes under title II of the Act.

Footnotes:

[1]

^. No copies of documents supporting these allegations were presented, however it does not appear that the agency requested these documents.

[2]

^. To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330. As we have not been asked to provide an opinion on whether claimant meets these additional requirements, our opinion will focus on whether the claimant and the NH are validly married or can be deemed married.

[3]

^. This legal opinion is based in part on an opinion we received from the Library of Congress regarding the law in British Columbia, Canada.

[4]

^. The Wills, Estates and Succession Act was intended to provide greater certainty for individuals who put their last wishes into writing and simplify the process for those responsible for distributing an estate, but did not meaningfully change the definition of “spouse.” British Columbia, Ministry of Justice, available at http://www.ag.gov.bc.ca/legislation/wills-estates-succession-act/index.htm; Compare Estate Administration Act, S.B.C. 1996, c. 122, pt. 1 available at http://www.canlii.org/en/bc/laws/stat/rsbc-1996–c-122/104764/rsbc-1996–c-122.html#Part_1_General_498, and Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at http://bclaws.ca/civix/document/id/complete/statreg/09013_01#section 2/.