But what is to prevent one party in a long-term relationship from claiming ‘common law marriage’ when things go sour and the loot gets split, when no such marriage actually existed?
Having a ‘marriage contract’ (whatever the actual peice of paper is called) is a easy way of seeing that, yes indeed, these two were married.
>> 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
I don’t buy this, If you want to be married in the eyes of the state then get married. But you cannot consider it logical for the state to consider you to be married when you refuse to get married. The alternative makes things complicated as the state has to enter into an investigation and weigh a lot of factors like how long you were together and what were the circumstances. This makes things very complicated. You want to be married? Get married. Quite simple really.
Then you will of course provide proof that all or substantially all common law couples in Canada have agreed that upon separation the assests and debts shall be split 50/50 rather than according to who is deserving of what on an equitable basis. I challenge you to provide such proof of such allegedly widely held agreements.
When Phil spoke of a few hundred cases going into the trash, he was referring to claims for a 50/50 split in which the parties had not agreed to a 50/50 split. That, along with the Walsh claim, is the proof that your conjecture is false.
Furhermore, you have misquoted the Court. The statement you have attributed to Justice Bastarache was in fact made by family law authors Freemand and Lyon in 1983, and cited in Justice Gonthier’s decision in the 1995 Miron v. Trudel matter and again in the Wesh matter. Justice Bastarache never made this statement.
More to the point, the statement was made with very specifc reference to the contractual nature of marriage, rather than to any moral issue. Justice Gonthier was careful to point out that:
Thus you are grossly out of line when you make the accusation that the Court has a personal bias against common law relationships:
Concerning the general trend in relationships in Canada, you have spent considerable effort putting forward that common law relationships are gaining in popularity. What you failed to put forward was why such relationships are gaining popularity. You failed to discuss the possibility that perhaps they are popular precisely because they do not force the partners into an inequitable and arbitrary property division upon separation. For example, Justice Gonthier was careful to point out that “Almost 90 percent of first marriages last at least 10 years, whereas only 12 percent of common law relationships achieve this duration,” and that “less than half of all cohabiting unions are expected to last for three years.” You have ignored these statistics, and instead have assumed that common law relationships in general have the same durability as marriage.
Furthermore, you have alleged that the 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.”
This is grossly incorrect, for common law couples can secure the same property division rights as married couples without involving themselves with religion by simply going through a civil marriage, or by not marrying at all but insead making a domestic contract. Let me repeat that last bit, for although the point has been made previouly it seems to not have gotten across: you do not have to marry to make a domestic contract that sets out property division rights upon separation.
There is no bias or prejudice by the Court, as you have alleged. All the Court asks of any couple, married or not, is for that couple to set out what rules it wants to have applied pertaining to the division of property upon separation. For you to refuse to set out which rules you want to apply, and then cry prejudice when equitable rather than arbitrary rules are applied, is quite remarkable. Quite frankly, rather than make such astounding allegations of prejudice against the Court, your efforts would be better spent if you took five minutes to draw up a domestic contract so that the Court would know what is is you want and upon separation enforce your agreement as per your desire.
Imagine a child being asked which candy he wants, a red lollipop or a green lollipop. Both are equally good, but they are different as to taste. The child refuses to chose, but insists on being given one, so the parent makes the choice based on what she thinks the child wants. Then the child has a tantrum because it does not like the parent’s choice.
Feynn, with respect, I submit that all the Court wants is for you to make your own choice so that it does not have to make it for you. It is your choice, red or green, equitable division or arbitrary division. Don’t refuse to make the choice and then complain about what you receive.
That is a very insightful point. With regard to property rights between partners while they are together, marriage does not confer anything. Nothing changes from when they were single. No assumptions are made, nor additional rights are conferred, and no additional responsibilities are imposed. The parties can acquire assets and take on liabilities solely or jointly or in common as they see fit, just as they could prior to marriage. What marriage does is identify which laws should be used to set out the rules for division of property upon separation. Thus rejecting state involvement at the start of a relationship but then demanding it at the end of he relationship is closing the barn door after the hourses have fled.
Up here child support and spousal support is not affeced by whether one was married or not. If a person was a spouse, either married or just shacked up for a few years (in Ontario it is three years), and is in need of support, and the other spouse has an ability to pay, then there is a support obligation. If one is a parent or was acting in the role of a parent, then there is a child support obligation regardless of whether or not there was ever any relationship of any kind between the parties (e.g. a one night stands can result in a child support obligation, and a parental-like relationship with the child of one’s girlfriend or boyfriend can result in a child support obligaiton.
Okay, that’s a good start. Just wanted to make sure we weren’t talking about couples who’d just lived together for a few years without those express promises to each other and representations to each other. Assuming your province recognizes common law marriages, ya’ll are duly and truly married. Congratulations. 
Here’s the issue in the case, however. Again, as descibed in the news story (and I’d love it if somebody would drop a link to the actual opinion–journalists screw up legal stories with distressing frequency):
So here’s the question: Can a state or province pass a statute that de-recognizes common law marriage, or at least restricting the benefits that flow to common law couples as a result of state/province law?
A: Of course they can.
I live in Texas, where we do indeed recognize common law marriages. Promise each other you’re married, cohabitate, and hold forth to others that you’re married, and the result is that you’re married. No marriage license or ceremony needed, you’ve got a valid marriage that will be recognized everywhere in the United States and more or less the rest of the world. Pretty cool, and I like it that way.
I went to law school in the Midwest, in a state where (if memory serves) the legislature abolished common law marriage the better part of a century ago. An exchange of promises, shacking up, and telling everyone else you’re married won’t get you anything up there. Is that suppose to be some giant crime against humanity? Are Midwesterners being stripped of their dignity and human rights? Hell no. They just have to go down to the courthouse and make it official.
Freyrr, there are costs and benefits to both systems. Down here in Texas, we get litigation all the time where somebody claims they were somebody else’s common law spouse, and therefore they should get their fair share of the community property. Great, so now we’ve got courts and juries having to decide which partner is a lying sack of shit when they claim the marriage did or didn’t exist, when in many divorce or breakup situations, both partners are lying, vindictive jerks. The existence or nonexistence of a marriage is not something I want juries to be deciding, thank you very much.
Up there in the Midwest, on the other hand, there are some number of people (probably a very small number, since it ain’t legal) who have done the same thing as you and Lola: promises, cohabitation, holding foth. Morally, they’re just as married as you and me, but legally, they’ve chosen not to give it any effect. Their call to make, I guess. They’ll each retain their own separate property, and if they break up, life moves on without any of the legal difficulties that common law breakups cause so often down here.
Finally, your complaint about seeking to protect the children of diviorced common law spouses carries little weight. Child custody and support are determined based on parentage, not marital status. The courts will order child support and fix the custody arrangements when a common law marriage breaks up, and that will be basically independent of the property division.
Dammit. I meant Feynn, of course. Sorry.
My question was really about during the relationship. For example , if I have no income, and my husband earns $50,000 a year, I will not be eligible for public assistance because of his income. If we weren’t married, his income would not affect my eligibility.
Is this for all couples who live together for three years, or only certain ones -for example, those who had a domestic contract, or those who had an agreement during the relationship that one would bring in the income while the other stayed home with the children ?
minty, in Canda mutual promises alone to not create a marriage. Only a marriage under a provincial marriage act creates a marriage.
Common law spouses become common law spouses by shacking up together in a relationship of some permanance for a period of time (usually three years).
Either common law spouses or married spouses can make domestic agreements that deal with division of property upon separation.
Without such an express domestic contract, married spouses who separate will generally split net assets and debts on a 50/50 basis (with a few exceptions), whereas common law spouses will split assets and debts on an equitable basis with the assumption that individual property rights survive the relationship.
Here is a link to the decision: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/walsh.en.html
Ok, Minty, you should be able to answer my question. Once it’s been established that a common law marriage exists (whether because a judge or jury decided it, or because there was no dispute as to its existance), is a divorce necessary to end it?
And this section form the dissent absolutely floors me:
People cohabit out of necessity and are exploited because the other partner didn’t want to be married and wanted to avoid the consequences of marriage? There’s another choice besides marriage and cohabitation.
doreen, the amount of public assistance is contingent upon whether a person is residing with his or her spouse or has separated from his or her spouse, but is not particular as to whether the spousal relationship is one of common law or marriage.
The spousal support obigation is contingent on there having been a relationship, and is not contingent upon there being a domestic contract or any sort of spoken or unspoken agreement or arrangement, although a domestic contract can opt in or opt out of spousal support (btw, we are waiting on a Supreme Court of Canada decision on one of Phil’s cases, Miglin, that will review the test used to determine how binding such agreements are if circumstances change). Once having decided that there is an obligation, the spousal support amount is somewhat contingent on the past economic relationship between the parties (e.g. somewhat compensatory for lost opoportunities), but mostly is a balancing of ongoing income equalization against promotion of self-sufficiency. Child support is entirely contingent upon present income of the support payor unless there is undue hardship.
The case Fenn is concerned about deals only with the obligations between spouses concerning the dividing of property upon separation. It has nothing to do with the obligations between a spouse (married or common law) and parties outside the relationship (e.g. welfare benefits, pension benefits, succession priorities, personal care decisions, etc.). In short, it is about property division between spouses who chose not to get married or otherwise define their property rights, and has nothing to do with people who are discriminated against because they are married, or are discriminated against because they are not permitted to get married.
To answer your question to minty, in Canada a common law relationship does not require a divorce or any other official act to end it. Just walk out the door, or say the magic words “Eat shit and die you gravy sucking pig dog” and take a chain saw down the middle of the apartment, and shazam, it is over. (E.g. you can prove separation even if financial or tactical reasons have precluded your moving out – this happens when full time mom’s can’t afford to move out with the kids despite the dad refusing to move out.)
It is worth noting, however, that for both common law spouses and married spouses, the property division is triggered by separation, rather than by divorce. In fact, the property aspects of a divorce can be severed and decided prior to the divorce, or a divorce can be granted prior to the property aspects being decided.
Yes, absolutely.
Muffin, that opinion makes my head hurt just trying to read it. What the heck is up with your courts up there? Jeez, I thought American judicial opinions were badly written and sometimes impenetrable. Thank god I don’t have to mess with Canadian law on a regular basis.
If I understand your post and what little I could stomach of the terrible writing in the opinion, however, the implication is that Feynn is basically full of it when he claims that his relationship is a legal marriage, is that correct? What exactly is it under Canadian law that you acquire after three years of shacking up? The court consistently speaks of “unmarried cohabitants.” Is there any special legal status accorded to people in situations such as Feynn’s?
I was just going to make that point.
It seems to me that automatically declaring people who co-habitate to be ‘married’ is a bad thing, because it deprives people of one type of relationship. Some people want to live together without formal marriage in order to find out if this is the person they really want to marry. Other people may in fact choose to co-habitate instead of marry precisely because they DON’T want their property shared with the other person. They should have that right, if both parties agree.
And I just don’t see the big deal. Go get a contract. It’s not hard.
Common-law marriage also seems to me to be a little paternalistic. Back when there was greater disparity in incomes and employment opportunities between men and women, you could argue that women who wound up in domestic situations with men needed some kind of protection, even if they weren’t married. I’m guessing that that was the basis for most common-law legislation (maybe Minty knows better).
In any event, that is no longer the case. At least not to any large degree. And women today are just as educated as men (soon, more so).
I don’t want the government in my private life. I won’t want them having to decide what kind of relationships I have. So, I will sign contracts and use those to represent my interests. I think this is a reasonable position.
I share you opinion, doreen.
Justice L’Heureux-Dubé based her dissenting opinion on an assumption that for the most part neither marrying couples nor cohabiting couples have a clue or a concern about what their property rights will be upon separation, and that the legislated property rights for married couples upon separation were made to protect the parties desptie their initial lack of concern at the outset of their relationships. Since there is no functional difference between married or common law relationships with respect to the needs of the parties after separation, then in Justice L’Heureux-Dubé’s opinion the same property division laws should apply to both married and unmarried spouses.
I understand where her Honour is coming from, for there often is disparity in assets if one partner is employed while the other stays at home, but I disagree with her opinion because it fails to recognize that equitable division can take care of such disparity without being so arbitrarily intrusive toward individual’s property rights. Beyond claims for unequal division made in equity, support can equalize the ongoing incomes of the parties.
I am of the opinion that if persons getting married are clueless as to the rights and obligations into which they are contracting, then that should go to whether or not those rights and obligations should be binding on them, rather than go to applying those rights and obligations to unmarried couples, particularly since those couples may have chosen to remain unmarried precisely because they were aware of married persons’ rights and obligations but deliberately chose not to be fettered by such.
I’m trying to figure out in what respects a relationship like Feynn’s is treated just like a marriage. If it’s treated exactly the same as a traditional marriage, except for the division of property, that’s one thing. It’s entirely another thing if unmarried co-habiting couples are treated differently in many ways. Apparently, no divorce is necessary, so that’s a difference.Are those the only two?
Another problem I’m having is with the concept of “unmarried spouses”. In the US, you’re either married or not. You’re only a spouse if you’re married. A “common-law marriage”, where it’s possible, is as much a marriage as one that takes place in a cathedral in front of thousands of people. Apparently, Canada doesn’t consider co-habiting couples to be married, since the court opinion consistently refers to such couples as “unmarried”, and even the newspaper article refers to “common law relationships”, not “common law marriages”. How is it possible to be a spouse without being married? Spousal-equivalent, maybe, but the phrase itself implies a difference from spouse.
Judging by my own marginally comprehensible posts, I expect that it has something to do with airborne environmental toxins such as lead emissions drifting over from Minnesota’s Iron Range. There has been a trend over the years for SCC decisions to get rather large. Sooner or later someone will injure himself picking one up or dropping it on his toe, and the size of the decisions will be cut back.
More seriously, there is a lot of context behind such decisions. Major family law decisions have been pumping out fast and furious in Canada in the last few years, so following a current decision can be difficult without being up to speed on the context.
With all respect to Fynn’s praiseworthy commitment to his family, he is full of it concerning his marital status when he claims that his relationship is a legal marriage. In Canada you either are married by a minister (insert you religion and denomination of choice) after the publication of banns (insert the notice procedure of your religion and denomination of choice), or you are married by a government official such as a judge. That is the only way to become married. Simply trothing yourself to the person with whom you live does not make you married. Thus you might have noticed that I have tried to use the term common law relationship rather than common law marriage when referring to Canadians living in long term conjugal relationships in which they have not been formally married as per the above procedure.
and
Yes, there is special legal status accorded to unmarried cohabitants concerning spousal support.
“Unmarried cohabitants” is short for persons living together in a conjugal relationship of some permanence, or an analogous relationship (e.g. if for some reason the relationship is not strictly conjugal but still is not simply one of flat mates or economic co-dependants or care givers etc.). Basically it is a ten dollar phrase for meaning shacked up together for a while.
If people have shacked up for a while (in Ontario it is three years), they automatically gain rights and obligations concerning spousal support. (Child support, custody and access flow regardless of the relationship or lack thereof between the parties.) There is no need to make any promises to each other, or to formalize anything, or to make what you know as a common law marriage. All that is required to trigger spousal support is to shack up together and wait for the timer to go ding after three years.
No, there is no special legal status afforded unmarried cohabitants concerning division of property upon separation. Each keeps their own property. Thus if one party earns wages, puts money in the bank, and purchases a house in his name, while the other party stays home to raise the children, then that homemaker will not have any right to the house and bank account. (But remember that the right to support exists).
The only exceptions are claims made in equity. For example if one party held property in trust for the other (for example, if one ran a farm in which the other worked on the farm without pay), or if one party contributed to the assets of the other (e.g. contributed to the mortgage payments, or put a new roof on the house), then the homemaker would be awarded a chunk of the wage earner’s assets.
There is special legal status afforded married couples concerning division of property upon separation. It varies by province, but for the most part what each party had prior to marriage, or was given ir inherited during marriage, or was awarded for pain and suffering, is not split with the other party, whereas everything else (namely what the parties accumulated while they were together) is split 50/50. Thus in a married wage earner/homemaker scenario the house and bank account (and pension) would be split down the middle, regardless of who earned what and paid for what during the time the couple were together. This can be quite profitable for people who are more or less along for the free financial ride (as opposed to honest, hard working homemakers).
There are some exceptions concerning the division of net family property between separated married parties. For example, in Ontario a house owned prior to the marriage by one party is automatically split with the other married party if they lived in it just prior to separation. If a homemaker comes out of a first marriage with a house, but then marries again and separates again, she will lose half the house even if that was her only asset and even if her second marriage was to a rich dude. If a person works for years to purchase a house, and then gets married to a rich person and takes on the role of a homemaker, she loses half her house upon separation.
(Thus I am far from convinced by Madam Justice L’Heureux-Dubé’s opinion that, to paraphrase, a statutory equalization of net family property is generally a good thing which should be applied to unmarried spouses. If anything, I think that prior to marriage parties should be required to obtain independent legal advice concerning their property rights upon marriage, and that the difference between married and unmarried spouses’ property rights should be taught in highschool and generally disseminated to the public, for most people end up either married or shacked up at some point in their lives. Ironically, a divorce lawyer is under an obligation to inform his or her client of the opportunities for counselling with a view to reconciliation, but there is no obligation for parties to learn about what they are contracting into when they get married.)
Any couple, married or shacked up or still single but looking at each other with a twinkle in the eye, can at any time make a domestic contract (a.k.a. cohabitation or marriage contract if before or during the relationship, or separation agreement upon or after separation). Such an agreement can decide how assets will be divided upon separation regardless of what statutes may or may not provide.
A domestic contract can set out spousal support, but a change in circumstance may tear it up. It used to be that the change had to be radical and unforseen, but more recently in Ontario it only has to be a material change. Phil recently argued before the Supremes to decide what the test should be, and the decision should be out early in the new year. Ironically, although he argued for the material change in circumstances test, his long standing preference has been for the certainty of the radical and unforseen test. To bad he and the opposing lawyer could not trade clients. 
A domestic contract can set out child support, but an either an increase or an innocent reduction in the income of the payor will usually result in a variation of quantum. To save on a lot of litigation, the government has come up with a table that correlates income with the number of children being supported and squirts out a minimum amount of child support that must be paid regardless of what the parties might set out in their domestic contract. The court may permit some leeway if after all things (including spousal support and division of net family property) are considered and it appears that the child is still getting a good deal despite the child support being below the guidelines. Thus in some circumstances it may possible to hand over the house and get a break on child support.
Finally, there are some rights between a person and parties other than his or her spouse that may differ depending on whether the person is married or not. For example, let’s say that one of the SCC’s massive decisions falls off a shelf and knocks a spouse into a coma. If the spouse is married, then his spouse will decide whether or not to pull the plug. If the spouse is unmarried e.g shacked up in a conjugal relationship of some permanence) then his spouse will have no say in the matter unless a continuing power of attorney for personal care was made prior to the incident. Or let’s assume that the spouse then dies without having left a will. If he was married at the time of death, then his surviving spouse gets the lion’s share. If he was not married, then his common law spouse gets shown the door. The Walsh case has nothing to do with such issues.
Well that satisfies me. The court appears to have made the correct decision by refusing to impose the obligations of marriage on those who have consciously chosen not to invoke them. I’m actually somewhat troubled by the legally-imposed support requirements after x years of cohabitating, but that’s a different question from the one posed by Feynn. The fact that some benefits and obligations attendant to marriage apply to cohabitating couples in no way means that all benefits and obligations of marriage should operate as a matter of law on cohabitating couples. If that’s how you want to structure your lives, you can do it simply enough through marriage or contract.
Wow, that’s too long and complicated. Here’s the ten cent tour for what goes on in Canada. (Disclaimer: . . . lots of exceptions . . .varies by province . . . don’t kill spouse for property division based on this . . .)
Not spouses = no relationship other than one night stands
Child support . . . yes (if biological parent or standing in role of parent).
Spousal suport . . . no.
Equalization of net family property . . . no.
Automatic authority to make personal care decisions upon incapacity . . . no.
Right to share on intestacy . . . no.
Shacked up for three years or more = common law spouses = unmarried spouses
Child support . . . yes.
Spousal support . . . yes.
Equalization of net family property . . .no (each keeps his or her own stuff).
Automatic authority to make personal care decisions upon incapacity . . . no.
Right to share on intestacy . . . no.
Married spouses
Child support . . . yes.
Spousal support . . . yes.
Equalization of net family property . . . yes (add up the assets and liabilities incurred during the marriage up to the separation date, and split them in half between the parties regardless of who earned what.)
Automatic authority to make personal care decisions upon incapacity . . . yes.
Right to share on intestacy . . . yes.
It’s not that bad, in as much as support after three years of cohabitation will be minimal in quantum and duration (e.g. a ticket on the bus out of town), but support will be significant if there was a long term relationship in which one party sacrificed a career to be a homemaker. Aside from being the only decent thing to do, there is good policy reason for this, for it keeps people off the welfare roles.
Anyone passing through Thunder Bay want to go on a date? I won’t even insist on you signing a waiver.
Sometimes I think that the only rational response to all this family law stuff with regard to relationships is to set one’s self on fire and run screaming out of the room.