There are two types of laws:
- statutory law, and
- common law.
Statutory law is also known as statute-based law. It's the set of rules and decisions made by the federal government and by provincial and territorial governments.
Common law is also known as case law. It's based on decisions that judges have made about similar cases in the past.
They're both used in family law cases.
In family law cases in BC, two statutory laws are used:
- the Divorce Act: a federal law. It can only be used in Supreme Court by people who are married to each other, and
- the Family Law Act: a provincial law. It can be used:
- whether you are married or not, and
- in either Supreme Court or Provincial Court, except for those parts of it that deal with property, which can only be used in Supreme Court.
If you're married or you were living with someone as if you were married (you might call it being in a common-law relationship) but you and your spouse are separating, you can use:
- the Family Law Act to sort out issues about:
- family law protection orders, and
- either the Family Law Act or the Divorce Act to sort out issues about:
If you were married and want a divorce, you have to apply for a divorce under the Divorce Act.
You need to know which law you want to use when you go to court. The laws you need to use will affect whether you go to Supreme Court, Provincial Court, or both. If you're not sure which court to use, see Do you need to go to Provincial (Family) Court or Supreme Court?
There are big differences in how the Divorce Act and the Family Law Act deal with some issues, especially parenting. See Parenting apart to find out more about this.
Common law is based on decisions about similar cases in the past. Judges look at these cases to help them decide how to interpret the law.
You can research case law to get an idea about what might happen with your own issue. Talk to family duty counsel to see if they think it would be helpful to do some research.
A pro bono lawyer might be able to help you with this. Or ask a librarian at your local library if they can help you.
Two good places to research case law are: