Property rights eroding state of marriage


Sat, January 24, 2009

One of these years, there may be no difference, legally, between couples who marry and those who simply shack up.

Is there no social good left in marriage? Does society not bear a responsibility to promote it as a stabilizing, healthy influence in a world of fleeting pleasures?

Maybe I'm old-fashioned but I still believe in the institution of marriage. It signifies -- or ought to -- commitment and responsibility, as well as starry-eyed love. Yes, I shacked up with my husband for a couple of years before we tied the knot. But marriage feels different, more permanent.

Perhaps I'm just viewing the institution through the lens of history, with its swirl of age-old cultural/religious trappings. Nevertheless, I stand on my lonely perch to defend marriage, a formal bond amidst the rising tide of cohabitation.

In 2002, the Supreme Court of Canada also took a stab at defending marriage, in a Nova Scotia matter involving a common-law relationship breakup. The woman in the case was shocked to discover she wasn't entitled to half the family assets.

The Supreme Court declared there was no right to a 50-50 asset split. "If they have chosen not to marry, is it the state's task to impose a marriage-like regime on them retroactively?" the court asked.

But the provinces were left to devise family law as they saw fit and changes in recent years have gradually erased the legal distinctions between married and common-law. For a long time, all couples have been treated equally with respect to issues like child support, alimony and survivor benefits. (In Quebec, common-law partners who split up aren't entitled to alimony, but more on that later.)

The right to division of property was different, however, depending on whether you were married.

That is falling by the wayside. Manitoba has the most equitable legislation in this regard. There, if you've lived common-law for three years, you have all the property rights of married couples after separation.

In Alberta and Ontario, there is no specific legislation related to property division in common-law cases. Judges decide such matters on a case-by-case basis.

Alternately, common-law couples can draw up cohabitation contracts agreeing to marriage-like property-split obligations in the event of a breakup. Other provinces offer similar procedures.

A lot of people think that they are, in effect, married after three years of cohabitation. But that's a myth, says Toronto family lawyer Jack Hope.

They're "in for ... unhappy surprises at the end of 10- and 20-year relationships," he warns. "They have to resort to complex concepts from trust law in order to try and gain a piece of the other person's property.

"It becomes a huge, very uncertain lawsuit without any legislative support. But if you're married, then there's a very clear set of rules."

But back to Quebec, where a 34-year-old woman is fighting in court for $50 million plus $56,000 a month in support from her former common-law partner, a billionaire. (She already receives $35,000 a month in child support for their three kids.)

Arguably, there's a case to be made for spousal support for poor Quebec women, not just this Brazilian-born beauty, whom the billionaire met on a South American beach when she was 17.

But her lawyer wants all common-law unions of three years without kids -- and one year with children -- treated as marriages.

It begs the question: Is marriage losing its meaning?