When I started law school in Manitoba I learned that the province had recently changed the law to give “common law” spouses the same property rights as married spouses. Friends wanted to know: does it even make a difference if you are legally married?
In Manitoba, for the property purposes, the law deems you spouses when you have been living together in a conjugal relationship for 3 years.
But that is not even close to the whole story. I quickly learned that the timeline for becoming de facto spouses varies, depending on whether the issue is spousal support, federal pensions, income taxes, welfare benefits, or who makes decisions about your corpse. It can also depend on whether or not you have a child together.
British Columbia’s law changed March 18, 2013, to give “common law” spouses the same property rights as married spouses. In BC, those rights arise after you have lived together for 2 years in a “marriage-like” relationship.
Take note: the right to child support is the right of the child, and doesn’t depend on the parents being spouses. However, having children together can have an immediate impact on the issue of spousal support, even if the relationship did not last 2 years.
But while it’s a simple matter to calculate the time you have cohabited, in some cases the relationship is not sufficiently “marriage-like” to make you spouses.
For instance, you started out just living together for convenience. When did it become something more? There are probably two (or the proverbial three!) sides to that story.
The clearest difference between this scenario and being legally married is being able to point to a wedding date.
Of course, another important difference, and one that the law seems to brush over, is the ability to point to a clear intention by the spouses to become spouses.
Marriage is an institution laden with meaning for individuals, their families and communities. While the primary function marriage holds in Western culture has shifted from its mainly dynastic, commercial and reproductive purposes to something based more on companionship and emotional fulfillment, both the decision to enter into it and the public declaration are still momentous occasions.
But how else is legal marriage different in Canada?
Well, one thing that people often don’t realize is that lawyers have a special duty, when a client is legally married:
to draw to the attention of the spouse the provisions of [the Divorce Act] that have as their object the reconciliation of spouses, and discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.
In most cases, by the time a lawyer is involved, the marriage is beyond saving. But not all. Where reconciliation is possible, the Divorce Act gives the Court the power to press “pause”, even in the middle of a trial, to give the parties an opportunity to work it out and get back together.
The other main difference is that if you have children with your spouse the Court will not pronounce your divorce unless and until the Judge is satisfied that there are adequate provisions for the children.
The adequacy of those provisions, particularly the payment of child support, is defined by the law.
This gives married parents somewhat less flexibility than parents who were never married and who never brought the matter of their children to the Court for adjudication, to make the arrangements they believe to be best for their children. This oversight by the Judge can even apply to step-children, in complicated and unforeseeable ways. This has led many people to seek a divorce long after separation, and only after the children have grown up and become independent.
And this brings me to the last significant difference one finds in the law in BC. For unmarried spouses, most of the claims that arise out of the spousal relationship (the sharing of property and debt, spousal support, pension division) must be sued for no later than two years after the date of separation, while for legally married spouses, the same claims expire either two years after the date a divorce is pronounced, or, with respect to some claims, never.
In conclusion, the law in this area has changed significantly over time in an attempt to provide better protections to children and those who become financially dependent or inter-dependent with partners. But marriage still has a privileged place in Canadian law.
In either case, a cohabitation agreement or a pre-nup can save a lot of cost and hassle.