I fail to see why “wife” is inaccurate. It is a “de facto marriage”, so she is, in fact*, your de facto wife. And, if said de facto marriage is legally recognized in Australia, she is also your wife de juro.
*Yes, horrible pun intended.
I don’t think de facto or common law marriage is recognised in Australia, though unmarried couples in Australia may have most of the rights of married couples. The problem is one of constitutional law. The Constitution gives the Commonwealth Parliament the right to legislate on:
(Section 51, (xxi-xxii))
But the Constitution is an act of the United Kingdom Parliament, and has to be interpreted as such. In English law in 1900, “marriage” did not include common-law marriage, so the Commonwealth Parliament cannot legislate on common-law or de-facto marriage, other than as incidental to other powers (e.g., giving pension rights to domestic partners of federal public servants). Only the states can do so, unless they delegate power to the Commonwealth.
De jure, not *de juro. Jus, juris is a 3rd-declension Latin word, unlike factum, -i, which is 2nd-declension. Consequently, their ablative forms differ.
**Giles **
No, the problem is one of semantics. What does “wife” mean? What does “marriage” mean?
Of course this could easily be sidetracked into a discussion on gay marriage rights and amendments to the Constitution to define marriage one way or another, but that’s not my intent.
It’s to define the spport obligations that spouses, including “common law” spouses, have to each other. See s. 30 of the Ontario Family Law Act:
Unmarried couples who meet the test set out in s. 29 therefore can be liable to pay spousal support upon the break-up of the relationship.
This may be an accurate summary of the law in your jurisdiction, but it isn’t accurate for other jurisdictions. For example, in most Canadian jurisdictions, there isn’t the community property regime you describe. Here, the general rule is that only property that the spouses acquire after the formation of the spousal relationship is considered family property. (Although the matrimonial home is normally considered part of the family property, even if one of the spouses owned it before.) If Spouse A has a particular asset upon going into the relationship, and keeps it separate and apart from the assets acquired during the relationship, then upon break-up, it’s not family property and Spouse B normally has no claim on it.
All of which just highlights that there is no one answer to questions of this sort. Family property law can vary tremendously from jurisdiction to jurisdiction. Anyone who has a real-life need for information on these issues should consult a lawyer in the jurisdiction where they live, or where the property is located.
Since family law is a matter of provincial jurisdiction, as Malthus notes, there can be considerable variation on the approach taken. Malthus’ comment that there is no splitting of assets for unmarried cohabitants is an accurate statement for the statute law of Ontario, but other provinces take a different approach.
Quebec and Nova Scotia have civil union laws, which allow unmarried couples to register their union. Once they do so, they may have property obligations to each other in the event of break-up.
Saskatchewan and Manitoba provide that if a couple has been living together for a certain period of time, then they have exactly the same rights upon break-up that married couples do, under family property laws. Saskatchewan also provides that unmarried couples have the same rights under succession and intestacy laws that married couples have.
And, in all of the common law provinces, the courts have held that the common law of trusts normally gives unmarried spouses some claims to property that the two have acquired during the course of the relationship, regardless whose name the property is formally under.
To summarize what others have said: In the U.S., common law marriage is exactly the same as a more formal marriage. Many states (most?) no longer have their own common-law marriage provisions, but all states recognize common-law marriages from other states. That is, in State 1 there’s no provision for common-law marriage, but if a couple from State 2 qualifies for that state’s common-law marriage and then later moves to State 1, they’re still married in the eyes of State 1.
Because it’s a creature of state law, any state which creates common-law marriages can have different rules. In general, they require a certain period of cohabitation AND that the couple hold themselves out as married. Merely living together doesn’t make you married. But referring to each other as husband and wife in dealings with the community will do it, if you meet the state’s other requirements.
Once you’re married, you’re married – at common law or at the altar makes no difference in the rights and responsibilities of marriage. You still (in general) need to get a formal divorce to dissolve the marriage (although it’s possible some states have different rules on that score). OTOH, if you’re not married, you’re not married, and you can split up without divorce. However, it’s possible that your state law may consider even non-married cohabitants to owe each other support obligations (i.e., “palimony”).
As for the why – paperbackwriter covered the origin. As to why we’ve not gotten rid of it – why? Marriages, even City Hall marriages, take time and money. For the working poor, both may be in short supply. So the existence of common-law marriage still allows them to participate in this important social institution.
–Cliffy
Here are a couple of threads in which I provide info on which states still recognize common law marriage and also address the question of interstate recognition of common law marriages. There’s also some fun with bigamy at no extra charge. 