So about the only right gained by three years of cohabitation is the right to spousal support (which may be minimal, or I suppose,non-existent in some cases). It makes sense that cohabiting couples could gain some,but not all, of the rights and obligations of married couples. What didn’t make sense was Feynn’s idea that the division of property is the only instance in which married and cohabiting couples are treated differently.
I should have started an “Ask the unmarried, co-habitating, spousal equivalent” guy… 
Just about everyone has been making good points and asking good questions… this is an excellent discussion. Perhaps other “otherwise-married” couples will read this and learn something.
Muffin - I don’t believe there is a three year “shacking up” rule here, I should point out that the term “shacking up” is extremely derogatory and I would not use it to describe any of the otherwise-married couples we know.
"With all respect to Feynn’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.
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."
Great idea. I’ve got some extra matches…
Sam - I agree that having a domestic agreement should be essential in any long term relationship no matter what type of marriage is practiced. It would solve many problems should things come to an end.
To a bunch of you - stop telling me to get married.
Our laws are intended to protect members of our society from exploitation and abuse. As it stands, our current law does not provide for equal protection and leaves room for exploitation and abuse. I’m no lawyer and Madame L’Hereux-Dube says it better than I ever could… (bolding mine)
*Per L’Heureux-Dubé J. (dissenting): In conducting the three-stage analysis set out in Law to determine whether legislation infringes s. 15(1), it must be remembered that fundamental to the equality rights guarantee is its broad remedial purpose to recognize the innate dignity of each human being in society. This fundamental purpose is violated whenever a sufficient distinction is drawn between individuals or groups on an enumerated or analogous ground in such a way as to reflect the stereotypical application of presumed group or personal characteristics or so as to create the effect of perpetuating or promoting the view that the claimant is less capable, or less worthy, of recognition or value as a human being. In this case, the Court is required to identify differential treatment by observing the way the legislation treats two comparator groups: heterosexual married cohabitants and heterosexual unmarried cohabitants. The question is whether a person reflecting objectively on the claimant’s situation would regard the exclusion of all heterosexual unmarried cohabitants as being a violation of the claimant’s dignity.
**With respect to the first two steps of the Law analysis, the Crown conceded that the MPA draws a distinction between married and heterosexual unmarried cohabitants in the definition of spouse and that the distinction is based on the personal characteristic of marital status, which constitutes an analoguous ground of discrimination under s. 15(1).** Since formal discrimination has been established, it is left to determine whether the distinction violates the purpose of s. 15(1) by diminishing the claimant's dignity by promoting the view that she is less capable or worthy of recognition or value as a human being. A number of contextual factors must inform this analysis, to ensure that the claim is situated in its full legal, social and historical context in order to serve the broad remedial purpose of s. 15(1). The four factors enumerated in Law, the purpose of the MPA and other relevant considerations lead to the conclusion that the distinction drawn in the MPA has the effect of diminishing the claimant's dignity.
**Heterosexual unmarried cohabitants have historically faced disadvantages through a legal system that fails to acknowledge them as legitimate family forms. This pre-existing disadvantage has abated in recent years but remains exacerbated by the denial of equal treatment in the MPA. In failing to account for these people, the MPA does not serve a justifiable ameliorative purpose, nor does it provide a remedy in response to the actual needs of unmarried people.The prima facie right to an equal division of property and assets is of fundamental importance and the most expedient means of resolving the very difficult matters associated with the dissolution of a long-term relationship at a time where patience and emotional stability are at a premium. The failure to provide the benefits of the MPA to heterosexual unmarried cohabitants thus constitutes a failure to provide a fundamental benefit at a time when it is most needed. In doing so, the legislature draws a distinction based on a status wholly unrelated to the actual needs of people whose relationships of interdependence have come to an end and who, as a result, require redistribution of economic resources through property equalization and support. Heterosexual unmarried cohabitants experience similar needs as their married counterparts when the relationship comes to an end. In this sense, the relationships are functionally equivalent. Each of these relationships performs the same valuable functions and the law should apply equally to both. Since the purpose of the MPA is to recognize this need and to alleviate it, limiting the recognition to married cohabitants implies that the needs of heterosexual unmarried cohabitants are not worthy of the same recognition solely because the people in need have not married.** Further, the MPA equal presumption is based on the recognition of the contribution made by both spouses to the family. Functionally, spouses contribute to various types of families. The MPA's refusal to recognize the contributions made by non-married persons to their relationships sends the message that, by virtue of their marital status alone, their relationship is less worthy of respect and value.
Although unmarried cohabitants are relationships, on average, of shorter duration, the MPA has built in devices to allow the court to rebut the presumption of equal sharing where appropriate. **It is no excuse to deny the benefit of equal sharing to all heterosexual unmarried cohabitants simply because some members of the group do not deserve or want this equal division. The legislature is in the best position to craft legislation that takes into account the difficulties associated with extending the benefit.**
The dignity of the members of the claimant's group is further attacked by claims that the MPA is designed to give effect to the intentions of married and unmarried persons at the outset of their relationships. The MPA has nothing to do with choice or consensus, and everything to do with recognizing the needs of spouses at the end of the relationship. **Initial intentions are, therefore, of little consequence. People are often unaware of their legal rights and obligations and do not organize their personal lives in a manner to achieve specific legal consequences.** Matrimonial property legislation imposes a wealth distribution regime on marriage dissolution without regard for the wishes of married cohabitants at the outset of their relationship, not on some pre-conceived consensus. Furthermore, many heterosexual unmarried cohabitants cohabit not out of choice but out of necessity. For many, choice is denied them by virtue of the wishes of the other partner. To deny them a remedy because the other partner chose to avoid certain consequences creates a situation of exploitation. Even if research were to show that unmarried cohabitants choose to cohabit in order to avoid the legal consequences of marriage, those findings would be irrelevant as it is the reality of the relationship at its termination that the MPA addresses, not the intentions of the parties at its outset.
**Courts and legislatures in this country have also recognized that denying certain benefits to a class of persons on the basis of their marital status is unjust where the need for these benefits is felt by both unmarried and married cohabitants equally.** Both courts and legislatures have extended certain benefits to heterosexual unmarried cohabitants. The appreciation of an injustice and the resulting actions reinforce the view that the denial of marital property benefits demeans the dignity of heterosexual unmarried cohabitants. The steps taken constitute an acknowledgement of an historic attack upon the dignity of these individuals. Lastly, the MPA cannot survive a s. 15(1) scrutiny because of the availability of alternative remedies. These remedies are inadequate relative to those accorded spouses under the MPA. The claimant's dignity is demeaned by offering her remedies that are greatly deficient relative to the legislated property regime.
Given these conclusions, it follows that the MPA infringes s. 15(1). This infringement cannot be saved by s. 1 of the Charter. There does not appear to be a pressing and substantial objective for the omission of heterosexual unmarried cohabitants from the MPA. **Taken as a whole, the true objective of the MPA is the protection of married individuals from the harmful effects following the breakdown of the marriage to the exclusion of all non-married cohabitants.** This is not a constitutional objective. Assuming that the objectives of the MPA are pressing and subtantial and justify a breach of a constitutional right, the means chosen are not proportional to the objectives considered due to the absence of any rational connection between the exclusion of heterosexual unmarried cohabitants from the MPA and the purported purpose of the statute.*
And stop mis-spelling my name…
Muffin’s breakout of married/shackup/one_night arrangements suggests a couple may desire an un-marriage contract. They could draw up a contract saying, “We just want to live together and we specifically reject common-law marriage.”
Sort of a pre-nuptual agreement without the nups.
Sorry for the fly-by post here (I’m in an airport) but this has to be one of the most philosophically-challenged rants of all time.
**
Do you realize how utterly inconsistent this is? On one hand, you contemptuously reject the idea of a “state sanction” to validate your relationship. On the other, you’re ranting about how outrageous it is that the state, uhm, refuses to validate your relationship.
You must see that this is bizzare. If you don’t want the state to “validate” your relationship, fine. By all means, leave the state out of it. Once having rejected state “validation,” however, you cannot expect the state to step in and clean up the mess that you left once the relationship goes sour. What you seem to be asking for is the opportunity to take an avant-garde stand against the traditional family coupled with the comfort of knowing that that stand is merely empty posturing because you’ll get the benefits of being in a traditional family should you ever need them.
The point is, people in common-law relationships ought to be required to choose: if you want the state to enforce the rights and responsibilities that go with being married, get married. If you don’t want the state to enforce those rights and responsibilities, don’t get married This actually gives people much more scope to create the non-traditional family structures you favour.
Oh, and by the way, the “Think of the children” thing is a red herring. Canada has laws regarding child support, no? These laws kick in regardless of whether the parents are married or not.
I’m guessing because he thinks the right to joint property is not bestowed upon people by the state through the state action of marriage.
Truth Seeker - This actually started out as a rant but I thought it better to place it somewhere where it might garner more productive discussion. I believe it has.
I believe that there are inherant rights and responsibilities when two people form a long term, mutually supportive, relationship. If they don’t want to be bound by these moral obligations perhaps they should draft an un-marriage contract as jsleek suggests.
The function of the law is to provide protection to individuals within a society and in many cases, individuals leaving a common-law relationship may now find that the law does not provide equal protection for them as it does traditionally married couples.
The ruling of the Supreme Court has in effect, served notice to the couples who are involved in common-law relationships that they will be treated differently under the law should they decide to separate.
Without having any other provisions in place this ruling gives opportunity for one spouse in a common-law relationship to take advantage of the other should disolution occur.
Lola and I have no desire to be anything than what we are, a couple wholly devoted and committed to each other. We see no need for legal sanction and more and more, common-law relationships are regarded as equal to traditional marriages.
I am concerned with other people like us who are not so wholly committed where the law will fail in providing equal treatment when those relationships end.
Barring pre-nuptual contracts:
If a woman has lived with a man for lets say, 20 years and raised his children while he went off to work I believe she is entitled to the same treatment as the woman who was married to her husband for 20 years and made an equal contribution to the relationship.
The current laws may not apply to both women equally.
My mother was involved in a comon-law marriage for 10 years (until my step-father passed away). The law treated her as they would have if they had been legally married and she receives a survivors benefit. They had all of their common property such as their home listed as joint assets and made provisions for inheritance should one of them pass away.
If anything happens to me Lola will inherit everything we have. Our property is held in joint and she is listed as the beneficiary of any assets and insurance I have should I pass away.
I’m not worried about us.
Thanks, but I think I’m going to have to refuse to go along here when it comes to property division. It is a matter of conscience for those two people to decide how to manage their property. If they wish to share it equally in the event of a breakup, they may do so quite easily by means of a marriage or a contract. When they intentionally decline to take either of those steps, the state can and should respect their express or implicit wish for each party to retain ownwership of their own separate property.
Put another way, it is not preferable to force couples to take active steps to maintain the status quo. Not to mention, where the line is drawn in these things is ridiculously arbitrary. Three years? Why not five years? Why not three months? Why not just split the title to the two people’s property by action of law as soon as they start a sexual relationship? Sorry man, but it makes just oodles and oodles of sense to me to maintain the status quo of separate property unless and until the couple affirmatively decides to change that status.
Yes. They’ll be treated like individuals who each own their own property. I fail to see this as a crime against humanity.
As per the intention of the parties.
I’m honestly happy for you guys. I’ve been uncomfortable with the state’s role in sanctioning marriages for some time. Heck, I love it that I live in a state the recognizes common law marriages, since that leaves the marital decision right where it should be–solely in the hands of the parties. The idea that the state has to give its blessing (however perfunctory, at least in the case of opposite-sex couples) to the relationship of two people is intellectually disturbing to me.
But at the same time, I recognize that many of the burdens and beneifts of marriage should only come into effect when the parties have explicitly consented to accept them. It is abhorrent to me that the state would move in and decide “Okay, you guys have been together long enough. Because you have failed to do so yourselves, we are now going to reorder your lives, starting with who owns what, regardless of your consent to that reordering. Have a nice day, eh?” If you want to have your affairs reordered like that, you can effect it yourselves via state-sanctioned marriage or through private contract. Do not impose your preference on everyone else.
And for the sake of that situation, you’re going to screw with he private decisions of untold thousands of couples who have made the choice not to do so themselves? Come on, for every hypothetical tale of woe you can come up with, I can easily set up a counterexample showing how your preferred system would work an injustice.
Pretend, for instance, that the unmarried woman in your story left the relationship after 20 years to run away with the fabulously wealthy heir to a Canadian beer conglomerate. Still gonna give her half the property of the poor broken-hearted moose herder she left behind?
feynn-you do not have a family according to the court. i think that that is all of the proof that you need. you want the moral high ground of being ‘a family’ making up your definition of what constitutes a “family” and you get upset when the court doesn’t go along with it when the time of breaking up the ‘family’ comes! and you get upset because the court doesn’t give you all of the rights of a contract relationship without the contract. then, you make them into beasts by saying “the women and children get screwed”. having sex does not entitle one to property rights. that IS what is being discussed. having a baby doesn’t either, i’m sorry to say. having a baby gives one RESPONSIBILITY. learn it. love it.