Separation agreement didn’t terminate “marriage-like” relationship

Two British Columbia women live common law and sign a separation agreement. Four months later, one dies without a will. What happens when the deceased’s sibling hires a lawyer to administer the estate, and the surviving partner subsequently seeks to be declared a spouse?

As outlined in Razafsha vs. Heidary, released Aug. 10 by the Supreme Court of B.C., Mina Razafsha and Atefeh Jadidian began living as a couple in 2015, bought a home together in 2018 and signed a separation agreement in October 2019. After signing the agreement, however, Jadidian didn’t move out.

In February 2020, Jadidian died without a will.

The administrator of the estate, which was valued at about $400,000, was originally lawyer Rachel Heidary, hired by Jadidian’s sister.

Razafsha asked the court to declare her as the deceased’s spouse, revoke the grant of estate administration to Heidary, and grant the administration to her instead.

Under B.C.’s Wills, Estates and Succession Act, when a person dies without a will leaving a spouse and no descendents, the spouse inherits the estate. Primarily at issue was whether Razafsha and Jadidian were living in a “marriage-like relationship,” the decision said.

Section 2(1) of the act stipulates a couple are spouses if they’re married or lived with each other in a “marriage-like relationship” for at least two years. Another clause stipulates that a couple ceases being spouses if one or both of them “terminate” the relationship.

While Heidary argued that Razafsha and Jadidian were never in a marriage-like relationship, Justice Janet Winteringham disagreed. “In my view, the evidence is overwhelming that they were,” Winteringham said in the decision.

Much of the 36-page ruling focuses on conflicting evidence for the marriage-like relationship and whether the relationship had terminated for estate law purposes. The couple had a 2018 wedding in Mexico and described one another in financial documents as common-law spouses. Razafsha was the beneficiary of Jadidian’s life insurance policy and RRSPs — an example of “objective evidence of a financial nature,” the decision said.

Even if the relationship was marriage-like, it terminated more than 90 days before Jadidian’s death, Heidary argued, as supported by the 2019 separation agreement.

Razafsha countered that the relationship had changed but not ended. The separation agreement was sought to separate the couple’s finances in part because of a disagreement about whether to sell their home. Also, witnesses who knew the couple described an “ongoing relationship” in late 2019, the decision said.

Justice Winteringham found, on a balance of probabilities, that the relationship had not ended. In the decision, she cited Robledano vs. Queano (B.C. Court of Appeal, 2019). In that case, Justice Harvey Groberman wrote: “The fact that parties have separated may lead a judge to infer that one or both of them has terminated the marriage-like relationship. That said, separation, per se, is not the test for termination of a marriage-like relationship.”

Under the Wills, Estates and Succession Act, spouses are not considered to have separated if, within one year after separation, they begin to live together again and the primary purpose for doing so is to reconcile, and they continue to live together for one or more periods, totalling at least 90 days.

Staff

The staff of Advisor.ca have been covering news for financial advisors since 1998.