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January 25, 2013 3:17 PM   Subscribe

The Supreme Court of Canada rules that in Quebec, common-law spouses do not have the same rights as married ones.

After a high-profile 11-year battle, the court does not rule in "Lola's" favor.
posted by Kitteh (58 comments total) 6 users marked this as a favorite

 
Abolish marriage!
posted by crossoverman at 3:25 PM on January 25, 2013 [7 favorites]


I expected this to involve people who couldn't afford lawyers. Nope:
The decision means that Lola, a former model from Brazil, will not get a lump-sum payment of $50 million from the family estate, nor will she get a monthly alimony payment of $56,000, as she had sought.

She already receives about $460,000 a year in child support and was given a $2.5 million home.
posted by benito.strauss at 3:26 PM on January 25, 2013 [1 favorite]


I stopped feeling sorry when I got to "....will not get a lump-sum payment of $50 million from the family estate, nor will she get a monthly alimony payment of $56,000, as she had sought...."

It's a shame that this decision was based on a case that is so far from the norm...
posted by HuronBob at 3:26 PM on January 25, 2013 [1 favorite]


In other news, the Canadian Supreme Court also decided that common-law spouses are naughty, not nice.
posted by The Bellman at 3:28 PM on January 25, 2013 [2 favorites]


This, is not always true, at least not in Canada...
posted by HuronBob at 3:30 PM on January 25, 2013


at least not in Canada...
Well it is from Damn Yankees.
posted by juv3nal at 3:32 PM on January 25, 2013 [1 favorite]


A 4-way judicial split? Wow. Sounds... kinky.
posted by GuyZero at 3:33 PM on January 25, 2013 [6 favorites]


I'm of two minds -- here (in Canada/Quebec), the standard definition of common-law spouse, when one is needed, is

- the couple has been living in a conjugal relationship for at least 12 continuous months;
- the couple are parents of a child by birth or adoption; or
- one of the couple has custody and control of the other partner's child (or had custody and control immediately before the child turned 19 years of age) and the child is wholly dependent on that person for support.

If that first part of the definition were considered all that's required for full spousal rights in the case of a split, I would have been "divorced" twice before the age of 30, for having lived with two girlfriends for more than a year.

I can see the social justice and benefits to according full spousal rights to common-law couples on the one hand, but on the other, I'd hate to live in a place where you have to set the countdown clock to 11 months and 30 days any time you choose to move in with somebody, or risk having either party turn a break-up into a full-on divorce on day 366.
posted by Shepherd at 3:34 PM on January 25, 2013 [18 favorites]


The Supreme Court Judges were deeply divided dressed as Santas...
posted by dobbs at 3:39 PM on January 25, 2013


If that first part of the definition were considered all that's required for full spousal rights in the case of a split, I would have been "divorced" twice before the age of 30, for having lived with two girlfriends for more than a year.

Not sure about Quebec but typically mutual consent is a required element of a common law marriage. That is, both parties have to want it to happen. It's not something you just "catch" by living together.
posted by the christopher hundreds at 3:44 PM on January 25, 2013 [1 favorite]


Quebec doesn't have common law...
posted by miyabo at 3:48 PM on January 25, 2013 [7 favorites]


It sounds like the situation in Quebec may be similar in some ways to Louisiana, another place with French legal underpinnings in a mostly English common-law country. Louisiana has a similar arrangement where common law is "optional." This creates a rather large gray area which becomes positively massive when one side has a fleet of lawyers to throw at it.

Regular English common law is unambiguous; if you fulfill certain requirements you're married whether you like the idea or not, full stop. And your marriage is fully equivalent to that of someone who had a fairy tale wedding, right down to the divorce proceedings and alimony.

But the "optional" thing does create a host of questions. For the 20 years my wife and I didn't want to be married (she was self-employed and the marriage penalty on our income tax would have been huge) we were very, very careful to correct anyone who even jokingly referred to us as being married, lest we leave evidence some entity like the IRS might use.

The point is moot now for us since health insurance became a bigger priority than income tax and we went ahead and formally tied the knot. But it doesn't surprise me that the "optional" version created problems. It's much clearer in most places that follow English common law.
posted by localroger at 3:49 PM on January 25, 2013 [3 favorites]


Quebec doesn't have common law...

No, Quebec simply doesn't recognize it as a form of marriage. But there are many laws that apply to common-law partners as they would if you were legally married.
posted by Kitteh at 3:53 PM on January 25, 2013 [2 favorites]


I remember reading about this case a while back, and being less interested in the specifics than in the basic idea of radically changing how long-term relationships work. While Quebec doesn't have it, the notion of having a relationship status that doesn't have the traditional baggage of marriage attached to it (with implicit assumptions that it's all about procreation, and that somebody has to stay home and give up career/other options to raise kids), plus a culture liberal enough -- education, opportunities, safety net -- to ensure a genuine parting of equals and post-split support for children, would be very very interesting.

Then the cynic in me realizes that sooner or later somebody would try to take advantage of it, and the pleasant dream evaporates.
posted by ubernostrum at 4:02 PM on January 25, 2013 [1 favorite]


One interesting part of this, to me, is that she entered this relationship when she was 17, with a much wealthier man twice her age, and moved to his country speaking little of the language, etc. She obviously wanted to get married, especially once they started having children, and he kept putting her off. It's one thing to say, "Look, 30-year-old woman, if your man tells you he doesn't want to get married and you have children with him anyway and keep hoping he changes his mind, that is on you, you are not making good decisions." But could a foreign 17-year-old girl involved with a much older, more powerful, native-born man be expected to understand the implications of her decisions under Quebec law?

I don't have any idea if Quebec law includes anything like this, but "seduction" under common law was (still is probably somewhere) a crime where a man induced a woman ("of good character") into sexual intercourse by falsely promising marriage. Obviously that's not the exact situation here, but it's also difficult to see this as a relationship between equal, consenting adults, and it's hard to know how the law ought to deal with a situation like this, with so drastic a power imbalance when the relationship commences (indeed, she was too young to get legally married in Quebec without proof of a pregnancy when they first got together, and she left Brazil with a forged "parental" signature on her underaged passport.). Should he be penalized (and if so, how?) for inducing a young, foreign woman into a relationship where she clearly did not know what her rights (or lack thereof) would be upon termination of the relationship?
posted by Eyebrows McGee at 4:20 PM on January 25, 2013 [13 favorites]


The article shows some bias when they note that she's "already" receiving child support. Child support is to support the children. It's based on government schedules. There's really no arguing. And it's for the child. In saying "already", the reporter makes it sound like she should be living off that amount. But child support is supposed to be for the children.
posted by Chaussette and the Pussy Cats at 4:28 PM on January 25, 2013 [11 favorites]


Quebec doesn't have common law...

Don't they have a Civil Code that dates back to the 17th Century, and was based on laws governing Paris or something? With a little bit of Napoleonic Code thrown in for good measure?
posted by KokuRyu at 4:34 PM on January 25, 2013


Not sure about Quebec but typically mutual consent is a required element of a common law marriage. That is, both parties have to want it to happen. It's not something you just "catch" by living together.

This is not my understanding under Australian law at all.
posted by Mezentian at 4:54 PM on January 25, 2013 [2 favorites]


I'd find it pretty tough to be getting $56k a month in child support and not live off of it. As the child's guardian I'd have no qualms about it either.

Do you expect her to put whatever she explicitly doesn't spend on the kids in a trust or something, Chaussette and the Pussy Cats?
posted by ODiV at 4:57 PM on January 25, 2013


"She already receives about $460,000 a year in child support and was given a $2.5 million home. A court ruling in 2006 also compelled Eric to also give her a car and to pay for a chauffeur, a cook and two nannies. He also buys plane tickets for the children and nannies for two trips a year as well as a daily allowance of up to $1,000 for the holidays."

Somehow, I think she'll be ok.
posted by Mitrovarr at 5:02 PM on January 25, 2013 [1 favorite]


BTW it's the owner of Cirque de Soleil.
posted by Napierzaza at 5:09 PM on January 25, 2013 [4 favorites]


Yeah, it's an open secret here that it is Guy LaLiberte.
posted by Kitteh at 5:21 PM on January 25, 2013


Also, regardless of whether common law is the way the legal system works in Quebec, the province has been moving towards common-law marriage as the norm for a long time. For 35-39 year olds, there are as many connon-law marriages as traditional marriages in Quebec [http://www.stat.gouv.qc.ca/donstat/societe/demographie/etat_matrm_marg/202_2011.htm]

So I think this case will set an interesting precedent in the province.
posted by GuyZero at 5:21 PM on January 25, 2013 [3 favorites]


ODiV, I meant no criticism of her. What I meant is that, under Canadian law, the point of child support is that it is for the children,not their primary caregiver parent. So it's not that she "already" has child support and doesn't need spousal support, although, most certainly, child support is supposed to be included in calculations for spousal support under the spousal support guidelines document often referenced. Also, the items noted there - the car & driver, cook and nannies, plane tickets and allowance - are considered Section 7 expenses for the children and most likely address the lifestyle and opportunities that they would be expected to enjoy. And Section 7 expenses are not included as child support as part of the calculations for spousal support.

I do not mean that this woman will be left in poverty or that she herself will not receive any benefit from some of those expenses. The $2.5M home, though, sounds like the only financial support she receives that is legally meant for her, although maybe there's some clause where she only gets to live there and doesn't have ownership.

Moreover, if this billionaire is who it sounds like it is, the eldest child is about 15 or 16. So this child support isn't actually going to last much longer.

In pretty much every other province, this woman would get spousal support. From what I have read, it sounds like this guy took a young girl (17 and barely speaking English vs his 32) and then exploited her lack of knowledge about the law, while trapping her in an abusive relationship that involved her children.He convinced her not to go to university and kept her on a schedule that barely allowed her to finish high school. He sneaked her out of the country without her parents' consent and took her to a country where she was isolated from them. It's hard enough to leave an abusive marriage when you have children. I can't imagine what it would be like if you found out, that for the sake of 2 hours of driving time, you are in the one province where you won't get spousal support. Honestly, it's disgusting that, in a province where half of all children are born into common law families, QUebec is the one place where you can't get spousal support. It's not even about what this situation means for this particular circus act. It has to do with all the families in Quebec.
posted by Chaussette and the Pussy Cats at 5:24 PM on January 25, 2013 [11 favorites]


I was more floored by the mention in the CTV article that "In fact, the province has the largest proportion of unmarried couples in the world. As well, 52 per cent of children in Quebec are born to common law couples."

I learned when I moved up here (by marrying an Anglo Canadian) that being married wasn't the norm at all.
posted by Kitteh at 5:25 PM on January 25, 2013 [1 favorite]


Quebec does indeed have a Civil Code, which is based in part on the Napoleon Code, which was in turn based in part on old French Law, including the Coutume de Paris (The Coutume was applicable in New France). The Code has changed quite a bit over the years, including a fairly thorough reform.
posted by Monday, stony Monday at 5:25 PM on January 25, 2013 [1 favorite]


Also, regardless of whether common law is the way the legal system works in Quebec, the province has been moving towards common-law marriage as the norm for a long time.

That's kind of missing the point here, which is that common-law relationships are in some ways similar to and in some ways different from marriages in Quebec. So, yes, there are significantly fewer marriages and more common-law relationships.

It makes a lot of sense to have some division between the explicit contract entered into in a marriage and something that you end up with if you once you've cohabitated for a year (which is a pretty low standard). I think there is a huge mismatch between the two and it seems very odd to insist that we should attach the same rights and responsibilities to these very different cases. I think the law in the rest of Canada is quite far behind society here - there are plenty of cohabitating couples in Canada who certainly wouldn't think that they are in a relationship equivalent to a marriage (the provincial law varies, 12 months is the federal standard).

And then there are the tax issues. Obviously, this is a difficult area to police, but I don't think we ought to treat everyone who cohabitates for a year as fully economically integrated. Should we treat economically codependent groups of two or more people differently for tax purposes if they are sleeping together? If they aren't? In Alberta, it is possible to form non-romantic/sexual adult interdependent relationships.

I think it will be interesting to see how these norms change (and how and when the law follows) over the coming decades in Quebec and in the rest of Canada.
posted by ssg at 5:55 PM on January 25, 2013 [1 favorite]


The Clowns are done.

Bring in the jugglers.
posted by mule98J at 6:02 PM on January 25, 2013


So, in Quebec, people who live as together as a couple can have three statuses:
1) Married. This means you have to get in front of a Officiant (your mayor, or someone who has filled the right forms and is in full possession of her rights -- might be your Rabbi or cousin Bob, but not aunt Alice who's under guardianship).
2) In a civil union. It's very much like a marriage, except you can't do it if you're between 16 and 18 (with parental consent).
3) In a de facto union. Many de facto spouses firmly believe that, after a certain number of years of living together, they are entitled to the same rights and subject to the same obligations as married or civil union couples. Wrong! For civil law purposes, de facto spouses are considered to be total strangers to one another, regardless of how long they have been living together. But for just $3.95, you too can draw up your cohabitation contract!

You cannot get into a common-law marriage in Quebec, because it's a civil matter, and is therefore the province of the Civil code.

However, the fact that the Civil code doesn't recognize de facto unions doesn't mean they have no effect before the Law -- many laws include provisions regarding them, including laws related to pensions and taxes. This includes both Federal laws and Quebec laws.

And since the Nine don't content themselves with looking like the One Ring's little helper, here's the the text of their decision.
posted by Monday, stony Monday at 6:17 PM on January 25, 2013 [1 favorite]



Not sure about Quebec but typically mutual consent is a required element of a common law marriage. That is, both parties have to want it to happen. It's not something you just "catch" by living together.

This is not my understanding under Australian law at all.


Under US law, my understanding is that one element of common law marriage is that you hold yourself out as married, that is that common law marriage is something that happens when you act as a married couple but don't do it formally. It's a way of recognizing unofficial weddings, not a trap for cohabitating couples. The common conception of common law marriage is closer to the later, but it's also wrong.

I have no idea how it works in either Australia or Canada.
posted by Bulgaroktonos at 6:54 PM on January 25, 2013 [1 favorite]


This ruling makes sense to me. If you want to be married, get married. I do think this guy took advantage of a very young woman but laws have to apply to many circumstances.

I used to work for Legal Aid in Oklahoma and they provided legal assistance to women seeking divorces from abusive men. (We worked with the local women's shelter.) Many men were surprised to find themselves married under common law. I huge number of women kept greeting cards addressed to "my loving wife" or some variation thereof.
posted by shoesietart at 7:10 PM on January 25, 2013


This ruling makes sense to me. If you want to be married, get married.

Seconded, though it is sad she could never get the dude to hit the aisle.

I don't really get "common law marriage," though. I find it to be a weird concept. One of my coworkers is in ... some...kind of relationship like this, and nobody knows whether or not to refer to his live-in girlfriend as his girlfriend or his wife. Including him, apparently.

Mostly I just think, if you wanted to get married, you'd get married. Living with someone for 12 years isn't the same thing legally (and shouldn't be if you didn't consciously make the decision to tie yourselves up like that). Being all, "oh, it's been 12 years, you got married without agreeing to it with the law or the vows" just seems....kinda wrong, somehow.
posted by jenfullmoon at 7:50 PM on January 25, 2013


It is very true that this woman made some uninformed choices - perhaps because of her age and the circumstances at the beginning of the relationship. It's sad for her, but that's the law in Quebec.

Common-law relationships in Canada are not marriage. You can certainly have all of the same protections of marriage, but you don't get them automatically - you have to go to a little bit of trouble to set them up yourself. Generally you need a lawyer. Your OWN lawyer, not one you share with your common-law spouse. But it's not difficult or very complicated or even very expensive. Most of it is stuff EVERYBODY ought to do anyway - your will, your power of attorney, your medical power of attorney, your power of attorney arrangements at your banks. In addition, you have to take the time to spell out what the deal is with common property - ie, the house, if you own one together - and joint financial investments.

People choose not to marry for many reasons. Sometimes for tax reasons, sometimes for inheritance reasons, sometimes because they just haven't got around to it yet. People aren't binary creatures, and there's no reason why they should have to fit into an either/or category just so that other people can stick a handy label on. Some people find the institution of marriage a bit repulsive, what with the patriarchal world-view that it's such a part of. Other people might just think that it's a bit foolish and undignified to get married when you already have 3 grandchildren.
posted by Mary Ellen Carter at 8:19 PM on January 25, 2013


Perhaps it would be better not to use the term "common-law" to refer to ad hoc partnerships in Quebec. That's the proper term of art, and people seem to be confusing this with the fact that Quebec had a code system for civil matters, unlike other provinces.

Here's another complication. The definition of marriage is under federal jurisdiction in Canada. However, ad hoc partnerships and formal civil unions are under provincial jurisdiction. So there can't be a thing called common-law marriage even outside Quebec because the use of the notion of marriage would invoke federal jurisdiction. I would also suspect that a federal form of ad hoc marriage would infringe on provincial jurisdiction over most civil relations.

Ain't Canadian federalism fun!
posted by sfred at 9:13 PM on January 25, 2013 [2 favorites]


People choose not to marry for many reasons. Sometimes for tax reasons, sometimes for inheritance reasons, sometimes because they just haven't got around to it yet. People aren't binary creatures, and there's no reason why they should have to fit into an either/or category just so that other people can stick a handy label on. Some people find the institution of marriage a bit repulsive, what with the patriarchal world-view that it's such a part of. Other people might just think that it's a bit foolish and undignified to get married when you already have 3 grandchildren.

You don't get to cherry pick based on what's in your favor. It may be undignified and repulsive until you don't want to share the windfall from Great Aunt Harriet. Or you want your partner with whom you have grandchildren to share it like he/she'd been doing until she/he met someone 25 years younger.
posted by shoesietart at 9:21 PM on January 25, 2013


Some people find the institution of marriage a bit repulsive, what with the patriarchal world-view that it's such a part of.

Howdy.
posted by five fresh fish at 10:11 PM on January 25, 2013 [1 favorite]


File your taxes together for decades, own houses together for decades, share bank accounts for decades… afaik, in BC that's a full-on marriage.
posted by five fresh fish at 10:13 PM on January 25, 2013


BTW it's the owner of Cirque de Soleil.

He's a billionaire, isn't he? Which makes $450,000 a year and a $2.5m house seem rather paltry.
posted by KokuRyu at 10:20 PM on January 25, 2013 [1 favorite]


Eyebrows McGee, Lola had a seriously brilliant and ferocious lawyer, and if "seduction" had been a possible charge in this case she would have thought of it.

I find it odd that people are spinning this as "common-law spouses do not have the same rights as married ones." They also don't have the same responsibilities.
posted by zadcat at 11:22 PM on January 25, 2013 [2 favorites]


"if "seduction" had been a possible charge in this case"

I do not suggest it as a charge in this case (I don't even know of any jurisdictions where its still a thing) but rather as a comparison to how the law has in the past dealt with power disparities and disproportionate consequences for women around sex-and-marriage relationships. The origin of the relationship bears uncomfortable similarities to human trafficking; and then he apparently abused and isolated a much younger woman. the Quebec law seems clear enough, but I'm not sure this woman has received justice by it, and it seems this man can go on to prey on more young women unrestrained. Perhaps he's found a sweet sport of morally icky but not illegal. But probably billionaires illegally removing foreign underaged teenagers from their home countries for sexathons, multiple children, and domestic abuse, followed by dumping them with no means of support is bad public policy. But probably there are a lot of places to intervene in that terrible causal chain.
posted by Eyebrows McGee at 11:52 PM on January 25, 2013 [1 favorite]


The "ha, well, she won't be on the streets, she has a $2.5m house!" comments miss out on the most important aspect of the ruling, IMO. With many (most?) couples in Quebec living in partnerships outside of marriage, a lot of people may have been under the assumption that they had an exit strategy from an abusive/dysfunctional relationship, and are just realising now that they don't.

The ruling makes sense, the original decision by Quebec's court was wildly controversial and divisive, I'm not disputing it. But even with the ruling and all the press it's getting, young couples moving into cohabitation/partnerships won't necessarily realize the rights and obligations that come with moving in together and simply never getting married.

It's not like you make the sudden decision, one day, to be an adult woman with children, in an abusive relationship with a billionaire, with no degree or job to get you out. These things happen one at a time until, one day, you're left with nothing much.

Why yes, this does hit close to home.
posted by third word on a random page at 1:24 AM on January 26, 2013 [4 favorites]


jenfullmoon: "Mostly I just think, if you wanted to get married, you'd get married. Living with someone for 12 years isn't the same thing legally (and shouldn't be if you didn't consciously make the decision to tie yourselves up like that). Being all, "oh, it's been 12 years, you got married without agreeing to it with the law or the vows" just seems....kinda wrong, somehow."

All I can say from personal observation is that what would normally be a happy, committed relationship can turn to crap once the formality is in place. I even knew a couple that lived together, then married, one spouse left and divorced the other, then, for all intensive purposes moved right back in immediately followed the divorce and things were back to normal for them days later.

People may not intend oat sowing, but tell them they CAN'T, they get uncomfortable, I guess.
posted by Samizdata at 2:39 AM on January 26, 2013


All I can say from personal observation is that what would normally be a happy, committed relationship can turn to crap once the formality is in place.

I don't think anyone is disputing the reasons people may have for not getting married, but one of the reasons they don't want to get married is the legal implications and obligations that come with next-of-kin designations, joint assets, join debts, etc. Common law marriage law is generally supposed to provide protection for people who lived as married couples without formalizing it, but if you insist on not formalizing it, and you don't identify as married, it stands to reason that your legal position at the end of the relationship is going to be a lot different when the relationship ends than it would have been of your were married. If you're comfortable with that, fine. If not, the couple should think long and hard about how important not being married really is to them.

I note that a lot of news reports refer to "Eric" as a "millionaire" rather than a "billionaire." I suspect that's because if he is referred to as a "billionaire", that reduces the pool of possible subjects significantly to the point where the identity of the couple is no longer anonymous.
posted by deanc at 7:05 AM on January 26, 2013


Most people didn't know that de facto spouses -- which happen really, really easily here -- never sort of age into something with more responsbility, or level up if they have children together. With this case, at least it's a bit more in the public sphere: if you want to have these agreements, you need to get a civil union or a marriage or sign a whole lot of paperwork.

Incidentally, you are considered a spouse if you are in a de facto union for the purposes of a lot of provincial government issues. You're required to give them prescription drug insurance if they don't have it themselves, for instance.

I still think that there needs to be a lot more consideration given if you have children together -- that the law should change to have two kinds of de facto unions, one with shared children and one without -- but this doesn't seem like a change that's going to happen.

The number of children born in a de facto union is increasing regularly -- and though I haven't seen the stats, if you excluded anglophones and allophones, I'd bet that the number is much higher than 52%.
posted by jeather at 7:40 AM on January 26, 2013 [1 favorite]


Quite frankly, I have the feeling that the women of Quebec would have benefitted from being represented by somebody else than "Lola". She's either supremely dumb or extremely egotistical (maybe both). Either way, I've never met such a level of unselfconsciousness as emanates from the second link.
As so often happens when it comes to such levels of litigation, neither party seems particularly worthy of sympathy: "Eric" sounds like a selfish, exploitative cad, and "Lola" like a lazy, entitled fool. Married or not, it doesn't seem to me that actual love was ever part of their relationship either way. An utterly cynical elder relative of mine once said "Only two things ever motivate people: money and...that other thing". It seems to me that, from the start, "Lola" was after the money (or at least the goodies that money can buy), whereas "Eric" was after...that other thing. They fucking deserved each other...only their kids don't deserve either.
posted by Skeptic at 8:28 AM on January 26, 2013


All successful marriages are happy in unique ways, all unsuccessful marriages are unhappy in the same way... ?
posted by KokuRyu at 10:49 AM on January 26, 2013


I find parts of the ruling (text) very interesting, and parts scary! Here's a brief overview of the justices' positions:

- J. LeBel (and three others) says there can't possibly be unlawful discrimination between married couples and de facto unions, because de facto unions don't face any societal prejudice. I … I really don't understand when prejudice became a necessary precursor to discrimination! Surely these justices would have a problem with a law that, say, brown-haired people must pay extra taxes—even though there's no widespread prejudice against brown hair. I am sure it is a coincidence that these four judges are all men.

Anyhow, these four also claim that because there's choice between marrying or not marrying, there can't be discrimination.

- CJ. McLachlin rules that the law is discriminating between marriages and de facto unions, but that it is a justified discrimination: "The objective of the Quebec legislature, which is to promote choice and autonomy for all Quebec spouses with respect to property division and support, was pursued in response to rapidly changing attitudes in Quebec with respect to marriage and is sufficiently important to justify an infringement to the right to equality." Definitely the most quotable opinion, and one to which I'm sympathetic.

- J. Deschamps (and two others) agrees with McLachlin with respect to the division of familial property. But they say spousal support is about basic needs, not autonomy, so spousal support should be available to even de facto unions.

- J. Abella says that both support and division of property should be available to de facto unions. She engages in some great pushback regarding "choice". Many (including in this thread) have mentioned that couples can choose whether to get married or not. In this view, marriage is just a sort of standardized contract, but a couple could adopt different standards of mutual responsibility instead—there's no real state interest in the whole thing.

Abella points out that our laws don't really reflect that view. If marriage were all about choice, then even a married couple could presumably pick or choose which rights and responsibilities they wanted. But that's not the case in Québec—you can't sign a prenuptial here that abrogates the right to support. Secondly, why is the default for de facto unions to leave partners vulnerable? If it were really about choice, the default should be the safer and non-discriminatory option, and couples could make an explicit choice to opt out.



Although I really like Abella's arguments, I think it would be much too drastic a change to suddenly turn all de facto unions here into civil unions. I would support a law that after some period of time, say five years, de facto unions are automatically upgraded to civil unions unless one or both of the partners objects. This would serve the purpose of allowing choice and autonomy, while still providing protection to vulnerable partners who may not be aware of the law.
posted by vasi at 11:23 AM on January 26, 2013 [1 favorite]


As a matter of info, most states in the US reject common law marriages.
posted by Atreides at 12:22 PM on January 26, 2013


Although I really like Abella's arguments, I think it would be much too drastic a change to suddenly turn all de facto unions here into civil unions.

But that's not necessary really; there are all sorts of other ways to try to solve these problems without the automatic upgrade. We could just plain change the de facto union laws about community property and divorce (I don't think it's a good idea, but it's possible). We can change them only in cases where there are children. We can have two levels of de facto union, one after 5 years or a child and one more like it is today. We can change the automatic laws for de facto unions to something, but something less than civil unions, but allow for people to sign contracts giving up their rights (as opposed to what it is now).

I am interested to see if this will go anywhere in the future now that this case is out of the news.
posted by jeather at 12:38 PM on January 26, 2013 [1 favorite]


I find it odd that people are spinning this as "common-law spouses do not have the same rights as married ones." They also don't have the same responsibilities.

Yes. If you want the rights of a spouse, get married. The law ought to honour individuals' freedom of choice - including a choice not to get married and take on the obligations of marriage (and post-marriage). Looking at this through the lens of "rights" in the sense of entitlements forgets about the right to autonomy, and to make your own decisions without the law imposing unwanted legal consequences on you.
posted by Dasein at 12:58 PM on January 26, 2013


- J. LeBel (and three others) says there can't possibly be unlawful discrimination between married couples and de facto unions, because de facto unions don't face any societal prejudice. I … I really don't understand when prejudice became a necessary precursor to discrimination!

In Andrews, 1989, which was the first case dealing with section 15 of the charter (the section in question here). In my understanding, the prejudice need not be pre-existing or widespread (I'm not sure where you are getting widespread from). If the legislature created a law forcing brown-haired people to pay higher taxes, then surely that would be prejudice, but in this case, the argument is that the legislature has merely said that there are different kinds of unions, with different rights and responsibilities.
posted by ssg at 1:09 PM on January 26, 2013


And you can see why this is necessary with many counter-examples, for instance any kind of income-based social program would be discriminatory without the prejudice test.
posted by ssg at 1:16 PM on January 26, 2013


And for some fun, here's article CCXX of the Coutume:
Homme & femme conioincts enſemble par mariage ſont communs en biens & conqueſts immeubles, faicts durant & conſtant ledict mariage. Et commence la communauté du iour des eſpouſailles & benediction nuptiale.
posted by Monday, stony Monday at 4:09 PM on January 26, 2013


five fresh fish writes "File your taxes together for decades, own houses together for decades, share bank accounts for decades… afaik, in BC that's a full-on marriage."

That's just it, you have to self identify as married. Being Friends With Benefits who happen to have the same address isn't enough.
posted by Mitheral at 10:49 PM on January 26, 2013


you have to self identify as married

The thing is, who decides whether you've self-identified as married? It may be more of a US thing what with our culture's horrified fascination with THE DIRTY DEED but there are countless horror stories of people who thought they were friends with benefits but found themselves in divorce court anyway.
posted by localroger at 7:39 AM on January 27, 2013


The thing is, who decides whether you've self-identified as married?

I swear I remember a few stories where two veterans moved in together to save money and then were deemed to be in a relationship and had their benefits cut, presumably around the year 2000 when common law same-sex relationships were acknowledged. But I can't find stories online about this.
posted by jeather at 9:04 AM on January 27, 2013


Yeah jeather that's exactly the sort of thing. Once some entity or agency decides it would be profitable for them to claim you're married when you say otherwise, suddenly you're in a labrynth of minutae as to what you've told who when, how long you've been together, and what you do when the lights go out.

It works the other way too; my brother in law went to the trouble of formally marrying his wife, but because she's Malaysian the government spent years trying to assert that their marriage was just a convenience for her to secure US citizenship, and quite a lot hung on the question of whether they were really having sex.

And a bit of a derail, but an aside: In some circles (particularly claims of infidelity at divorce court) it's considered proof that you're having sex if you're photographed entering a room together and then the lights go out. To which I told the lawyer who told me this, really? Because I've had sex with the lights out exactly once in my life, mainly as an experiment because we understood so many people preferred it that way, and we found it awkward and silly. At which point the fellow clapped me on the back and congratulated me on being the most virtuous man in Louisiana, heh heh.
posted by localroger at 10:17 AM on January 27, 2013


The lawyer or the person in the dark?
posted by ODiV at 12:09 PM on January 27, 2013


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