Some Common Sense...please. [Common law marriage]

Great Debates
1

On January 1st, 2003 Lola and I will joyfully celebrate our seventh year of “happily living in sin.”

It has been a wonderful seven years with no itches, a few bumps, but for the most part, joy and happiness. We are as committed to each other as any other couples we know and probably more committed than most. She still gives my butterflies in my stomach.

So, I’m going through the checkout at the grocers yesterday and since it’s busy I have time to peruse the papers. An article on the front page of the Globe and Mail caught my eye:

“Common Law Property Rights Denied”

Apparently, we were mistaken in thinking that our relationship was as valid as those who have decided to take that walk down the aisle. The Supreme Court of Canada thinks so anyways…

I say screw the 8 of them that supported this ruling and applaud the one Justice who had the balls to say “nay” to this.

This decision will have a profoundly negative effect on those people who are presently trying to decide on settlements after the breakup of their comon law relationships.

“The ruling means that common-law partners cannot claim an equal division of matrimonial property if their relationship breaks down. It also means that hundreds of property claims filed by common-law spouses are headed for the trash can, family-law expert Philip Epstein said.”

Who is going to get screwed here? Women and children.

The sole dissenter was Madam Justice Claire L’Heureux-Dubé who said the law continues a historical pattern of treating common-law partners as if they are not a “legitimate family form.”

Ours is a legitimate family and I would challenge anyone to prove otherwise.

2

A quote from the opinion (as reported in the news story):

Makes sense to me.

3

Seven years? That’s married. Common sense. Very simple. You see a guy checking out at the supermarket, he’s buying “feminine products”. Preacher, priest, rabbi or justice of the peace, liscence or no, he’s married.

As Zsa Zsa Gabor put it: “A man isn’t complete unless he’s married. Once he’s married, he’s finished.”

But seriously folks…

My take is like the Minster. If there are advantages and/or legal recognitions to being married, why the hell not? You can seperate and act unmarried as easily as not, no?

Plus, there is the wedding party, which is a great boon to your horn-dog male friends. Hard core guys know there is no greater opportunity this side of Heaven for some raw, drunken sex than a wedding party. Something about the scent of a fresh kill, drives them wild.

Or so I’m told.

4

“If they have chosen not to marry, is it the state’s task to impose a marriage-like regime on them retroactively?”

Yes. When a couple enters into a common law relationship they should be bound by the same responsibilities and given the same consideration under the law as traditionally married couples. I don’t see this as someting that would be impoosed retroactively but as something that should be understood when people enter into a long term relationship.

Like many others, Lola and I do not believe that we need a state sanction to validate our relationship and in most respects we are afforded the same rights (by law) as those in traditional marriages.

Both forms of marriage deserve equal respect under the law
and by differentiating between them the Supreme Court is demonstrating a prejudice or bias towards those in common law marriages by denying them the same protection under the law that traditionally married couples enjoy. By denying people in common law marriages the same rights they are imposing a different type of regime, one that implies that their relationship is less valid and that they are somehow less responsible if the relationship should end.

An example:

If a couple who have been married seven years separates and divorces the law is designed to protect the rights of the individuals in that relationship.

If Lola and were to separate there is no similar protection in the law for either of us. No recourse.

This decision leaves abundant room for individuals leaving a common law marriage to neglect their responsibilities to the other individual or individuals (children) in that relationship because the law does not apply to them.

It is as if the Supreme Court is sending a message that all of us who are “happily living in sin” need to go out and get married if we expect equal treatment under the law.

Why would I not be surprised if the 8 Justices who voted for this are older, god fearing, church going individuals who have a personal and religiously based bias towards those people they see as “living in sin”?

5

-When Person A and Person B get married, they are explicitly entering into a social contract with each other, with various rights and responsiblilites. But both Persons A and B explicitly entered into such an agreement.

-When Persons C and D decide to live together, but not enter into a legal union, they recieve no legal benefit, but also no legal responsibilites. To me, this seems to protect the individuals involved when and if they no longer want to live together. Since no union was explicitly stated, no obligation exists for people to divide property in any manner (other then legal ownership) when they split up.

6

Feynn, perhaps you should explain what a common law marriage is. I always thought a common law marriage was when two people lived together and exchanged vows in private.

If that is right, and you have to exchange vows to have a common law marriage, then your point is valid.

However, if you enter a common law marriage by default just because you live with someone and buy stuff for them, then obviously you should not have the same rights and responsibilities of a marriage.

7

I’m with Minty on this. If you want to share responsibility, get married. ‘Common law’ seems to me to be fraught with problems.

For example, I lived with another guy for three years. When I got married, I moved out. He had no right to my stuff. But if it was a female, she would? Or do we have to have sex first? Does having sex somehow give her a right to my stuff, and me to hers?

My solution: If you want to share your life with someone as more than just a roommate or casual sex partner, get married. That forms the basis of a contractual obligation. If you choose not to, tough noogies. If you live with someone and you won’t marry them or they won’t marry you, you know the situation you’re in, and you’re an adult.

And because I’d tie all these rights and responsibilities to marriage, I’d make sure it’s open to any two people who choose to enter it - gay, straight, whatever.

Children are another matter. You have a child with someone, you’re responsible for it, whether you are married or not.

8

I guess I don’t see the problem. The prime reason for marriage is today the same as it was medievally- to say to the world and the government that the people involved are now one family, with one set of belongings, sharing responsibility for anything that comes out of the union whether that be kids or stock holdings. The government in turn recognizes this sort of union and protects the shared quantities if the marriage ends.
If you want to declare that legally all your stuff is held in common, get married. If you don’t the government to recognize this fact and act upon it should the need arise, then don’t get married. It seems pretty simple to me. I don’t get why you would expect the government to assume something which you have yourself not declared.
(by the way, the second reason for marriage is Wedding Presents. We made more in one day than we did in the two months previous!)

9

It was my understanding that in those places that have common-law marriages (every place doesn’t and it looks like Canada is one of the places that doesn’t), it’s treated just like a ceremonial marriage in terms of rights, responsibilities and the need for a divorce to end it. Feynn, if two people in a relationship such as yours break up, do they actually need a divorce or can they walk away as easily as two people who are just dating ? I’m not talking about dividing property ,etc. Say there is no property or the division has been agreed on. Is some process necessary before one party can ceremonialy marry someone else? If not, how is your situation different from two people who lived together while never intending to be married? (probably the more common situation)

10

Feynn:
While you speak as if the motivation of this ruling is to declare that certain relationships are “better” than others, it seems to me that you are the one who has a specific idea of how relationships should work, and refuses to accept any other way. I may be misunderstanding what you are saying here, but my reading of your position is that anyone involved in a long term relationship must make certain commitments, and if anyone refuses to do so, the state should force them. Do you really think that people should be legally prohibited from entering into any long-term relationship other than marriage?

Also, you speak of privileges given to married people as if they come from the government, when some of them come from the other person. For instance, the privilege of getting half the other person’s stuff is granted from one spouse to another, not from the state to a spouse. The state cannot give one partner a claim to the other person’s stuff, because it is not the state’s to give away. What you are asking is for the state to steal from one person to provide your idea of justice to another.

And your statement

is simply bizarre. Of course you must getting married if you want the government to treat you as being married. Asking for the rights of a spouse from someone you having been living with is like asking for the rights of a leaseholder from someone from whom you having been renting month to month. If you want the security of a lease, you have to commit to a lease. If you want the security of marriage, you have to get married. It sounds like you are opposed to the very concept of a contract, since the whole point of a contract is to create what you consider unequal treatment.

11

I’m not a family law expert, and know next to nothing about Canadian law, but I’m curious why you would have thought your relationship was, in a legal sense, as valid as those that have entered into a marriage? AFAIK in most places in the U.S. common law marriages are not recognized, do not give rise to the same legal responsibilities as “legal” marriages, and do not give rise to the same rights either. Is there a historical context in Canada for your belief, or what?

12

“If you want to share your life with someone as more than just a roommate or casual sex partner, get married.”

Sam, you said you are married so obviously, having a state or church sanctioned marriage is important to you. Your “solution” implies that you consider any other form of marriage to be less than what you enjoy with your wife. We both know having a room-mate is a completely different matter and the reasons for co-habitation are much different.

Canada recognizes common-law marriage and these figures come from Stats Canada - 2001 census.

“The 2001 Census showed that an increasing proportion of couples are living common-law. Married couples accounted for 70% of all families in 2001, down from 83% in 1981. At the same time, the proportion of common-law couples rose from 6% to 14%.”

The missing 16% of couples are same sex couples, a statistic that the census has only started measuring.

“In 2001, the census counted 5,901,400 married couples, 1,158,400 common-law couples and 1,311,200 lone-parent families.”

So about 1 in 5 couples live common law and there are 732,900 children (or 13% of all children) living with common-law parents. In 1981 only 3% of children lived with common-law parents. Another interesting stat is that 30% of couples in Quebec are in common law marriages, twice the national average.

So the trend in Canada at least, is a move away from traditional families.

These non-traditional families should not be treated any differently than any other.

"Feynn, if two people in a relationship such as yours break up, do they actually need a divorce or can they walk away as easily as two people who are just dating ?"

We’re not dating. We made a decision to live together as man and wife just like those folks who opted for that walk down the aisle.

Apparently we didn’t need all the gifts or that stag party to be successful.

13

If you want the same rights as a married couple with regard to each other, then either get married or execute a domestic contract.

With respect to property division upon separation, marriage provides a default set of rules to decide who gets what. Parties, either married or not, can contract out of this set of property division rules. For those that don’t want to be stuck with the default rules, and don’t want to set any rules themselves, they can live together without either marrying or forming a domestic contract.

If a person prior to and during a relationship choses not to be bound by any set of rules upon separation, but then upon separation demands the imposition of a default set of rules, then that person is blowing and sucking at the same time.

So Feynn, your position that there is discrimination against common law couples with regard to division of property upon separation falls apart because there is nothing to prevent those same parties from forming domestic conbtracts.

I respectfully disagree with Madam Justice L’Heureux-Dubé’s opinion that common-law partners are treated as if they are not a “legitimate family form,” for the ongoing responsibilities of parenting arrangments (e.g. custody and access), spousal support and child support continue regardless of whether the relationship was one of marriage or not, and propoerty can be divided by way of a trust claim. The Walsh case was concerned only with division of property, and concluded that upon separation, the parties get out what they put into the relationship, rather than an arbitrary division.

Here is an example of how it works in Ontario (though this will differ in different provinces). Let’s assume a person with a $500,000 home with no mortgage marries a person with no assets. A few years later, they separate, so each party walks away with $250,000.

Had they lived together rather than get marrried or make a domestic contract, then the person who originally owned the home would keep it free and clear, less any contribution the other partner had made (e.g. maintenance, repairs and additions).

What it comes down to, is that it is profoundly unfair for a person to lose half the value of his or her home unless that person agrees to it through either a marriage or a domestic contract.

The Walsh decision did not say that there would not be a division of property upon separation of common law couples, but rather that the division would not automatically be 50/50. Thus equitable divisions (divisions based on fairness rather than arbitrary divisions) will continue to be made thanks to this case.

14

Look, I’m a small L libertarian. I want as little of the state as possible. This isn’t a matter of state intrusion so much as it’s a matter of contract.

I really don’t care if you don’t want to be ‘formally’ married in a church. And I don’t think it’s necessary. It would suffice if the two of you simply drew up a contract wherein you said, “We wish to be treated as if we were married under the law in the event of our separation.” Get it witnessed and filed with a lawyer, and you can have the same thing.

What I AM against is people entering into relationships without any sort of contract whatsoever, then forcing the state to sort out the mess when they split. Can’t you see where this causes problems? For instance, that friend and I who lived together for three years - why wasn’t that considered to be a common-law marriage? Because we were the same sex? What if we were gay? Do you really want the state mucking about in all this? I say, if you want to live with someone and want them to be your ‘family’, either get married or go have a contract drawn up. Failure to do so should mean that the two of you are treated as roommates when you break up.

Two of my aunts lived together in the same house for 30 years. One of them never married, and the other’s husband died when she was about 50. If one of them dies, should the other get all of her stuff absent a will? Or should it go to her family? What if the surviving aunt claims that they were lesbians and lived together in a loving relationship? Now what? Who decides?

If you ask me, the whole notion of ‘common law marriage’ gives the state a much bigger hammer than does the requirement to be married or otherwise draw up a contract if you want to share stuff.

15

I think that non-traditional families should have the right to not be arbitrarily treated as traditional families, for they have made conscious decisions to eschew being traditional families, and instead have chosen to be treated equitably.

16

I don’t know how it works in Canada, but you don’t need gifts or a stag party to get married here. Hell, you don’t even have to ascribe to a particular religion. Getting married can be strictly a legal venture. If you want all the rights afforded to married couples you can always shell out the money ($80 in our case) and go to the local Justice of the Peace (or your local equivalent) and get the legal standing in place. You don’t have to wear rings, or change your names, or in any way tear apart any vestiges of your independence, if that’s what you are worried about.

I understand why some people don’t want to deal with the stigma of marriage and opt instead for a common law lifestyle, but I see no reason why the state should be made to intercede in an affair it was not given right to do so in the first place.

In the U.S., if you want to be able to legally enforce an exchange of goods, property, or services, there are certain requirements that must be met. First, there must be mutual assent (you both agree), and also it must be in a particular form (i.e. a written contract). A marriage certificate satisfies these needs. Without one, you cannot legally enforce any agreements. To do so without such a contract would seem to me, at least, to invalidate any other such contract. Why have anyone marry legally then if you’re going to afford the same rights to those who do not?

A piece of paper does not change your committment to each other, nor does it change the nature of your relationship. If you prefer not to get married, that’s your right, but you can’t expect the state to validate your relationship.

17

Since Feynn won’t tell us what constitutes a common law marriage, I have to assume that he thinks simply living with someone counts.

Actually, common law marriages, to my knowledge, imply that a couple has already privately vowed to each other that they will get married. The origin of the common law marriage is that it used to be more difficult to get married, but at the same time it was considered far worse to live together without being married. Therefore it was simply assumed that couples living together were planning on getting married, and they were considered to have a common law marriage.

These assumptions simply do not work today. Marriages are not difficult to get, and people do not always consider living together while unmarried to be a sin. Therefore it would be wrong for the government to assume that a couple wishes to be considered married, just because they live together.

18

I didn’t mean to imply you were dating. I’m asking what happens when a couple in your situation breaks up- is a divorce necessary for one party to enter a ceremonial marriage with a different person, or can a person simply walk out today and marry someone else tommorow. If you need a divorce, it’s a marriage like any other. If you could walk away and marry someone else tommorow, it will be impossible to tell from the outside if you andyour partner want to be and believe yourselves to be married, or if living together was just cheaper than two separate apartments.

I wonder, why, though if you don’t think the state should be involved in a marriage, you think it should be involved in a breakup.

"Common law couples " (not marriages) for the Census, apparently includes all couples living together as a family, whether they intended to be married or not.

Your reasons for co-habiting are whatever they are, but everyone doesn’t have the same reason. Every co-habiting couple I know includes at least one person who does not want to be married.

Which rights? And who has the corresponding responsibility? If Lola has no income, will her eligibility for government aid be based on your income, as it would be if you were married, since spouses are responsible for each others support. Or will it be based only on her own income, since you have no legal duty to support her?

19

Feynn, since you ignored Sam’s request that you define what you consider to be common law marriage, allow me to be more specific: Did you and Lola exchange promises be married to each other, and have you held yourselves out to others as being husband and wife? Down here in the U.S. of A., those are absolute prerequisites to any common law marriage (in the dozen or so states that recognize them at all). My understanding is that we got that from the Brits, as I assume Canada did as well.

Did you say to Lola that you took her as your wife? Did she say to you that she took you as your husband? And have you told everyone else you’re married? If not, my understanding is that you have no claim whatsoever to a common law marriage. You’re just shacked up. Not that there’s anything wrong with that, but don’t expect the state to just magically appear and decide that the two of you are married.

20

“Common-law couples decry high court ruling. Notion that marriage implies a stronger bond is simply wrong, partners charge” - from the Vancouver Sun

Justice Michel Bastarache (in his ruling) wrote:

“Unmarried couples do not make the same commitment and rights and duties akin to marriage should not as a result follow.”

I would disagree and take offense with the honourable Mr. Bastarache on his statement that unmarried (common-law) couples do not make the same committments as those who are married.

Minty - I didn’t mean to ignore anyone but there have been a great number of responses. To answer your question;

“Did you say to Lola that you took her as your wife? Did she say to you that she took you as your husband? And have you told everyone else you’re married?”

Yes, yes, and yes. We’re as married as the couple next door.

I am concerned with the ruling as it does not afford the same protection to the most vulnerable individuals should a relationship be disolved, these being women and children.