I thought that was one of the unanswered questions of Lawrence. The decision limited itself to sodomy laws, but Scalia in dissent listed this parade of horribles saying that now states could not ban adultery, fornication, masturbation, polygamy, and (gasp) gay marriage!
I didn’t know that Lawrence went so far as saying that states couldn’t outlaw cohabitation, for example.
I can’t speak for the U.S., but in Ontario both those statements are wrong. I.e. common law status is treated differently from marriage in a variety of ways (e.g. in terms of divorce, or being compelled to testify against your partner in court) and “shacking up” for long enough is enough to confer common law status (3 years, in Ontario).
In Ontario, too and the whole point of common law marriage here is to give protections to couples where one of them does not want to get married but they want to cohabitate.
There actually is a form of ‘divorce’ (in terms of dividing assets and custody of minors) that you can seek if your common law spouse leaves you (or you them).
ETA: keep in mind also that same sex marriage is legal here.
Also, IIRC’ CPP (Canada Pension Plan) will decide who your significant other is. Ive heard of cases where someone dumps the long time spouse for a newer model, then keels over a year later with a heart attack. Ive heard even if hes not divorced yet, and the old wife gets the insurance, the work pension and other benefits (if he forgot to change the paperwork) the CPP will assume the most recent cohabitation is the beneficiary of the survivors pension.
OK, this is where it starts to get complicated.
What’s “common law marriage”?
English common law took its cue from the established (Roman Catholic) church, and recognized marriage as something constituted by the mutual agreement of the spouses, ratified by consummation and implemented by the establishment of a common life. That’s “common law marriage” and it applied not only in England but in all English (and, from 1707, British) colonies and dependencies.
In the late 17th century, the Roman Catholic Church revised its stance and decreed at the Council of Trent that (in the absence of special circumstances) a marriage could only be constituted if the couple exchanged their vows before a priest in a canonical ceremony. By that time, however, the English reformation had occurred, and the common law no longer reflected the ecclesiastical law of the Roman Catholic Church.
It wasn’t until 1753 that English law was modified (by “Lord Hardwicke’s Act”) to require a marriage ceremony, publication of banns, etc. (The object was to prevent clandestine marriages.) From that point on, the old common law rules as to how a marriage was constituted no longer applied; if you didn’t get married in accordance with the new statutory rules, then you weren’t married at all.
However, by 1753, there were many colonies and dependencies which had their own legislative procedures; Lord Hardwicke’s Act did not apply there unless it was adopted, or replicated, by the appropriate procedures. And in many places this did not happen. Consequently in those places you could still constitute a valid marriage by doing what common law required. That’s “common law marriage” - a perfectly ordinary, normal, valid marriage, indistinguishable in its meaning and effects from every other marriage, but constituted using the old common law procedures rather than newer statutory procedures.
So what about Ontario?
Well, Ontario doesn’t actually have “common law marriage”. Wikipedia claims that “the Ontario Family Law Act specifically recognizes common-law spouses in sec. 29, dealing with spousal support issues”, but this is false. If you actually look at s. 29, the words “common law” do not appear. What s. 29 does is to provide, for the purpose only of provisions dealing with support obligations, an extended definition of “spouse”. In general, in the Ontario Family Law Act, “spouses” are (a) people who are married to one another, plus (b) people who think in good faith that they are married, but whose marriage is actually void or voidable because of a legal defect. Under s. 29, for the purpose of financial support provisions only, the term “spouse” is extended to include a third category - (c) people who are not married, but who have cohabited for three years, or who are the parents of a child and have a relationship of “some permanence”.
This is not “common law marriage”. S. 29 explicitly acknowledges that these people are not married, and does not change this. All it does is to give them certain rights to claim support from one another in certain circumstances, similar to the rights which married couples have. (Similar, but no identical.) And it may be that in other respects, by other statutory provisions, cohabiting couples are partly or fully assimilated to the position of married couples - e.g. tax, inheritance. But there are important respects in which they are not. S. 29 spouses can, for instance, be compelled to testify against one another in court, which married people cannot. And, crucially, having a s. 29 “spouse” is no bar to contracting a marriage to someone else, whereas having an actual spouse certainly is.
It may be - I don’t know - that in Ontario, influenced by what goes on south of the border, people refer to couples who are within the scope of s. 29 as “common law spouses”, and assume that they are therefore in a “common law marriage”, but that’s wrong on several levels. First, they’re not in any kind of a marriage. Secondly, to the (limited) extent that they are deemed to be spouses in Ontario law, this is not by operation of common law but by the operation of a specific statutory provision. And it’s possibly dangerously wrong, if it leads people in this situation to think that they are in fact married, or that they will be treated as married for all purposes. They aren’t, and they won’t.
Whether Ontario has “common law marriage” depends not on whether the Ontario Family Law Act gives cohabiting partners rights of support, but on whether Ontario law recognizes that observing the common law requirements will constitute a marriage. And it does not; s. 4 of the the Ontario Marriage Act states flatly that “no marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns.”
So, no common law marriage in Ontario.
Ohio recognizes common law marriage but only if the relationship started before, IIRC, 1991, and the couple has remained together ever since. After that, you’re SOL.
I’m not sure that that’s quite correct. Ohio had common law marrriage until 1991, but in that year the law changed so that you could only get married by license. But the law did not operate to invalidate existing marriages, so if you married by common law in Ohio prior to 1991 I would expect to find that you continue to be married until you divorce, or one of you dies. Your marriage does not dissolve simply because you do not “remain together”. Splitting up with your spouse in these circumstances will result in your being separated, not single.
You may be right. My memories of this point of Ohio law are 15+ years old.
Wow is this ever nitpicky. We colloquially refer to the spousal arrangement of cohabitating for a long time as ‘common law marriage.’ Do you live here?
If I recall correctly, they term this “bigamous cohabitation.” But if the man in the OP isn’t married at all, that doesn’t apply, does it?
I’m aware that shacking up is colloquially called “common law marriage” in many places, though I wasn’t particularly conscious that Ontario was one of them. No, I don’t live in Ontario.
But I don’t think what I say is “nitpicky”. There is thing properly called “common law marriage” in many jurisdictions though, as it happens, Ontario is not one of them. And, going back to the point raised in the OP, yes, contracting or attempting to contract a common law marriage, in that sense, can certainly expose you to prosecution for bigamy in the right circumstances. So in the context of this thread the distinction between actual marriage contracted under common law rules and just shacking up does matter.
I suppose that most Ontarians know that “common law marriage” in the Ontario sense is not, legally speaking, marriage at all. So long as they’re not misled about that, no harm results from the phrase.
On the other hand, being misled is certainly possible, since the Ontario usage is, I imagine, influenced by US practice, where the phrase “common law marriage” very often refers to actual, legal marriages. And hogarth at least may be confused; when I wrote that “you can’t find yourself married simply by shacking up with someone for a period, even a long period” he replied that “in Ontario [this statement is wrong] . . . “shacking up” for long enough is enough to confer common law status (3 years, in Ontario).” That does suggest that hogarth thinks that, in Ontario, if you shack up for three years you can find yourself married. No, you can’t.
While you can’t find yourself ‘married,’ you can find yourself on the hook for a settlement should you seperate and alimony can be awarded.
You also have rights in terms of their healthcare, etc.
Really seems like a difference in nomenclature (and that one is a conscious versus unconscious action) to me.
Your friends are far more polite than I would be in a similar circumstance.
It’s certainly not just a “difference in nomenclature” in the context of this thread. No amount of “common law marriage”, Ontario-style, will prevent you from contracting a marriage with someone else, or expose you to a charge of bigamy should you try, whereas being in a true common-law marriage certainly will.
Similarly, should your Ontario “common law marriage” come to an end, while you may have financial obligations to (or claims upon) your partner, they are not the same obligations/claims that would subsist between a married couple (not least because they are subordinated to the obligations/claims either partner may have to an actual spouse, including a spouse acquired after the start of the “common law marriage”). Besides, when your “common law marriage” breaks down, you only need to resort to the courts if there are financial issues between you which you cannot resolve by agreement or negotiation; when you actual marriage breaks down, the only way you can end it is with a divorce, whether or not there are any financial disagreements.
Besides, it makes little sense to judge whether your relationship is identical to marriage by looking only at what happens when it ends. While the relationship subsists, are the couple fully assimilated to the status of a married couple? For all tax purposes? For all social security purposes? For presumption of paternity and registration of birth purposes? For inheritance purposes? For the purpose of making care and welfare decisions about next of kin? And if there is a slew of statutory provisions giving them as-if-married status with respect to these and all other issues, is that status protected, or is it vulnerable should one of the couple unilaterally enter into a legal marriage with someone else?
The whole point of the marriage equality movement in the US is (a) that the legal and social status of marriage is not easy to replicate with a slew of statutory provisions, presumptions, private agreements and so forth and (b) that it actually makes a difference to people whether they are really married, or just treated for some specific purposes and on certain specific conditions as if they were married. We can’t really say at the same time that gay people have a legitimate concern here, but that straight people who aren’t married are as good as married, and that it’s just “a difference in nomenclature”.
Asking if someone is your boy-/girlfriend is unacceptable in your culture? It sure isn’t in mine.
Amongst people who know each other, of course, not strangers. That would be weird.
Health care? In Ontario? Everyone has it, no matter who they are shacked up with or just left.
Most corporate benefit plans (Dental, prescription drugs, etc.) specifically REQUIRE cohabitation for “spouse” or equivalent. Dependents must be that - under 18 or full-time at college 23 and under with no intervening time off in the workforce, or handicapped and fully dependent.
Our company went through a cost-cutting exercise where the benefits company required everyone to sign a statement to that effect. Quite a few people had (mutually agreed) deals with the ex to keep them on benefits, which ended when this letter came out.
What cohabitation will get you, whatever its non-legal non-name, is a share of the retirement benefits earned during your relationship. If X has a pension after 30 years, and Y cohabited for 10 of those, Y gets half of 1/3 of the pension, or 1/6. I know of several divorces where the wife though she was hitting the jackpot, only to find that the Net Present Value of a about a sixth of a pension possibly 20 years or more in the future was less that $20,000. Of course, any benefit plan for retirees is also part of that mix. IIRC the spouse at the time of retirement gets the benefit and survivor pension rights, no matter what happens before that or after.
In a home shared by a number of people, if some of them are fucking others of them, it is likely to come up in conversation. If it hasn’t, asking who is fucking who is invasive, IMHO.
Fairfax County has a department specifically for addressing these types of issues.
Just to be clear, the tenants would be in violation of a zoning ordinance, not a criminal law. But they can and do enforce this.
Sorry, I was unclear. If you get hospitalized, they can approve treatments.
I would think since there is no marriage between the lovers, it is acceptable, all be it immoral.