Common Law Marriages

                                                      

In the Province of Ontario in Canada, couples who have lived together as husband and wife for three years or more even though they didn’t have a marriage licence or underwent a marriage ceremony, are considered as actually being legally married. As such, they each have the same rights as couples who have a marriage licence and underwent a marriage ceremony. This even applies in instances where two men or two women have lived together for three or more years in Ontario.

However, if they have a baby that was born while the couple lived together less than three years while they cohabited in a relationship of some permanence, then the time it takes to be considered  as a common law marriage  may be much shorter.

Common law relationships are on the rise in Canada, however many couples are unfamiliar with the legal rights and responsibilities they have with respect to one another should the relationship break down. In most cases, it is possible for common law couples to end the relationship without having to take any of the legal steps married couples who are seeking a divorce must take.  Such cases generally end up in family court.

The laws governing common law relationships differ from province to province. In Ontario, two people are considered common law after they have lived together for at least three years unless as I said earlier, they have had a child together

Common law partners sometimes assume that if they separate, they have an automatic entitlement to half of the assets accumulated during the relationship. But the reality is that they do not have any automatic right to property like married couples do under the Family Law Act. So, whatever the parties brought into the relationship is what they are entitled to leave with (division of property based on ownership), and they generally must divide any shared property equally. A common law partner also has no intrinsic right to inherit property if the other party dies and did not include them in their estate plan or will. That includes the home that both parties lived in.       

However, it is possible to make a claim against a common law partner’s property using an equitable relief claim such as a constructive trust claim. Someone would make this claim if, for example, they did not hold title to the home they shared with their partner, but made significant investments into bettering the household, or if they shared mortgage payments.

In an unjust enrichment claim, one partner asserts that through the contribution of his or her labour/time or money, the other partner was enriched through the first partner’s expense. A court will recognize that it would be unfair for the first partner to suffer a deprivation without a “juristic reason” (such as a legal contract) to rationalize or justify it, and seeks to redress the unfairness of allowing the recipient partner to enjoy the benefit without having to reimbursed the other partner.

Common law partners can claim spousal support, and like married individuals, a party who cohabited with their ex-partner would have to request spousal support to a court.  Determining the amount, duration and type of spousal support that one partner may owe the other will depend on numerous factors including the means and needs of each party, the ability of the paying party to afford support, and the employment and self-sufficiency prospects of the recipient party. There is no limitation period for a common law partner to claim spousal support under the Family Law Act, however it is always best that the applicant make the request as early as possible.

It is highly recommended that common law couples create a cohabitation agreement before they move in together. This domestic contract details how the parties will deal with issues such as property and spousal support should the relationship break down, or if one of them dies. Custody, access and child support of any children of the relationship cannot be included in a cohabitation agreement.  It would require a separate agreement.      

Now, I will take you to an unusual case that was heard by the Court of Appeal in New Foundland that involved two people who lived together in a common law relationship.         Both were widowed.

 The issue presented in this case is therefore whether or not the applications judge erred in concluding that Mr. Bussey could not be regarded as a spouse of Ms. Dwyer for the purposes of property division because he and Ms. Dwyer did not intend to comply with the recognized marriage formalities in the jurisdiction of New Foundland. It was Ms. Dwyer who filed the appeal. They were now separated and she wanted to be able to claim part of Mr. Bussey’s home as her own.

.Lloyd Bussey and Linda Dwyer had been living together for a few years beginning on July 12, 2008 when they participated in a peculiar ceremony. Alone in Mr. Bussey’s house in Port de Grave, and with no official, witnesses present or having a marriage  licence,  and while sitting on the edge of their bed, they exchanged rings that had been blessed by a minister, opened a Bible, and read out the verse, “What God has joined together, let no man put asunder.” As far as they were concerned, they were now a married couple.

In some sense, Mr. Bussey and Ms. Dwyer may have intended to create a traditional marriage. They were living together in a conjugal relationship. Their ceremony deliberately echoed the formalities of a Christian wedding. Over the next few years they called each other husband and wife and introduced themselves as husband and wife to friends, family, and the congregation at their church. They received and preserved cards congratulating them on their wedding.  They characterized themselves as widows on tax forms, and believed that they were complying with the marriage laws. But Mr. Bussey and Ms. Dwyer did not intend to create a legal marriage.

This certainly raises an interesting legal issue. If they were legally married to their original spouses and weren’t divorced from them, would their common law marriage would then be considered as a valid marriage?  I don’t think it would be a valid marriage any more than if they were married to each other after fraudulently obtaining a marriage licence. However they were widows and didn’t fraudulently obtain a marriage certificate. In fact, they didn’t obtain one at all. 

When Ms. Dwyer decided to break of their relationship. she felt that she was entitled to a half share of  Mr. Bussey’s home so she  took him to court.

The applications judge concluded that the relationship of the parties did not entitle her to benefit from the provisions of the Act for the purpose of property division.

Ms. Dwyer then filed an appeal in the Newfoundland Court of Appeal. The issue involved consideration of the legal nature of a conjugal relationship in order to determine if the parties are “spouses” under the Family Law Act

The question facing the court was; was this couple actually married to one another.

At the time of the ceremony the key provision was s.44 of the Solemnization of Marriage Act states;            

Where the parties to a marriage solemnized in good faith and intended to be in compliance with this Act were not under a legal disqualification to contract the marriage and after that solemnization have lived together and cohabited as husband and wife, the marriage shall be considered to have been validly solemnized, notwithstanding that the person who solemnized the marriage was not authorized to solemnize marriage and notwithstanding an irregularity or insufficiency in the issue of the licence.

First of all, if they were previously married under this Act and not divorced, then they were disqualified from being officially married to one another. Secondly, no one legally solemnized their marriage and thirdly, they didn’t get a marriage licence.

   Mr. Bussey and Ms. Dwyer’s ceremony could not be brought within the Solemnization of Marriage Act

It was not a case where the official (religious leader or justice of the peace) was not authorized to solemnize marriages”. There was no “person who solemnized the marriage”. There was no “irregularity or insufficiency in the issue of the licence” as there was no licence at all. Further, Mr. Bussey and Ms. Dwyer did not intend to be in complete compliance within the Act.

As Mr. Bussey and Ms. Dwyer were not legally married, they can only count themselves as spouses under the Act  if (1) the ceremony between Mr. Bussey and Ms. Dwyer was a form of marriage and (2) Mr. Bussey and Ms. Dwyer went through it in good faith.

The appeal court judge who wrote the opinion for himself and the other two appeal court judges said;

“I am prepared to assume for the moment that the ceremony was a form of marriage. The central question is whether Mr. Bussey and Ms. Dwyer went through the ceremony in good faith.”

  There are three possible meanings of the phrase in good faith that were  suggested:

1.      An intention to form a conjugal relationship.

2.      An intention to be married in any sense—legal, social, religious, etc.

3.      An intention to be legally married.

   Choosing among these interpretations requires an analysis of the statutory text, the jurisprudence, the scheme of the Act, and the policy of the Act.

There is a strong presumption that every word in a statute has meaning.  Whatever “form of marriage” may mean, it implies an intention to form a conjugal relationship and an intention to be married. So the words “in good faith” are redundant unless they mean “an intention to be legally married”.

The good-faith exception can actually be traced to  Lord Hardwicke’s Act in 1753, which set out mandatory formalities for entering a marriage in England. The Act provided without exception that any marriage that failed to comply with the formalities was void. The courts interpreted that to mean that any deliberate departure from the statutory forms was fraud and invalidated the marriage. However, a small inadvertent departure would not invalidate the marriage.

This policy was expanded and given a firm statutory basis in section 22 of the 1823 Marriage Act. If only one party was aware of the informality, the marriage was valid; if both were aware, then the marriage becomes fraudulent and void.  Fraud is the antithesis of good faith.

 Canadian courts have consistently followed that policy. An invalid marriage formed in good faith is valid if the parties thought it would be legally valid.

   Like many family-law statutes of the late twentieth century, the Act is organized around a distinction between “spouses” and “partners”. In contrast to spouses, partners are persons who have cohabited in a conjugal relationship outside of marriage.

  Parts I and II, which ensure a sharing of the matrimonial home and family property, apply only to “spouses”. Part III, which deals with spousal support, applies equally to spouses and partners. And Part IV distinguishes between “marriage agreements” (for “persons who are married to each other or intend to marry”: s. 62) and “cohabitation agreements.

Unmarried cohabitants, on the other hand, maintain their respective proprietary rights and interests throughout the duration of their relationship and at its end. The general principle is that, without taking some unequivocal consensual action, these cohabiting persons maintain the right to deal with any and all of their own property as they see fit.

The Matrimonial Property Act, then, can be viewed as creating a shared property regime that is tailored to persons who have taken a mutual positive step to invoke it. Conversely, it excludes from its ambit those persons who have not taken such a step. This requirement of consensus enhances rather than diminishes respect for the autonomy and self-determination of unmarried cohabitants and their ability to live in relationships of their own design.

If, as in this case, a couple deliberately avoids the legal consequences of marriage, it is difficult to conclude that they have taken a mutual positive step to bring themselves within the matrimonial property regime. In assessing the fairest and most practical way to interpret the Act, it is important to acknowledge that restricting the matrimonial property regime to couples who believe they are legally married can bring about a real injustice.

The matrimonial property regime is meant to protect and recognize the equal contributions of partners, especially partners who are economically dependent on each other in whole or in part. However, this marriage is not a realistic option for some people.

Some people mistakenly believe until it is too late, that unmarried relationships have the same legal effects as married ones.

These situations are partly addressed by the modern law of unjust enrichment. Unjust enrichment, however, can be an imperfect substitute for a statutory property-sharing regime.

And yet couples who deliberately choose to avoid the legal consequences of marriage may have good reasons for doing so. That is because couples differ in age and stage of life; in commitment; in values; in interdependence; in division of domestic and economic labour; in wealth and earning power; in obligations to dependents, family and others; in aspirations for career or children. The Act is not suitable to every couple’s circumstances.  Certainly one size does not fit everyone.

   Respect for couples’ autonomy requires deference to couples’ choices about how to arrange their own affairs. Couples can express their choices through a marriage or cohabitation contract. But, as long as the law distinguishes between the rights of the married and unmarried, couples also may signify their choice of property regime by entering into a legal marriage or deciding not to do so.

These arguments have a special force in jurisdiction of New Foundland because, uniquely among Canadian family-law statutes, the Act automatically places every matrimonial home in joint tenancy. The difficulties this can create were explained with characteristic vigour and fairness by the then Minister of Justice T. Alexander Hickman when he first introduced the joint-tenancy system.

A man has one major asset, the family home, that he has built, acquired, paid for, worked for over a period of, many years. And then he decides to marry and he marries a lady who for one reason or another, has either property she inherited from a former husband or property she has worked for and bought, and she decides that the matrimonial home will be the one that her husband owns.

There can be a situation where, should there be a dissolution of the marriage, or death of the husband half of that home goes to his wife, whereas her properties are not subjected to that distribution of the marriage assets. Now, surely, there will be that kind of problem existing from time to time.

There may be a situation  where there was a child of the marriage who is forty or fifty years of age, who has worked hard with her father—her mother is dead and looked after the family home, and suddenly, the father decides to remarry and then the matrimonial home is owned by the father and his new wife; the father dies and the daughter finds herself in a situation where there may be some inequities especially if the new wife claims the property as her own. This could be a real injustice if the daughter put a lot of her own money into the home and is asked to leave by the widow.

 Another practical problem is that the Act in its current form presumes that there is a bright line distinguishing married from unmarried couples. In particular, the joint-tenancy provisions of Part I of the Act require couples and third parties to be able to ascertain with certainty whether there is a valid marriage in the appropriate sense.

Interpreting “good faith” as an intention to be legally married ensures certainty. Only couples who honestly believe they are legally married will be considered spouses under the Act.

The couple in this article knew that they weren’t legally married (licence and all) but believed that they were still a married couple. 

A couple of years ago, a couple who lived in Florida  six months of the year and six months in Ontario decided to get married in Ontario. The man (who is an old friend of mine) retained the services of a lawyer who failed through his own stupidity to obtain a marriage licence by the time his relatives and friends arrived to attend the marriage ceremony. The person who conducted the ceremony was licenced to conduct the ceremony but because no licence was obtained, the marriage wasn’t a valid one. Further, they hadn’t lived with one another for the past three years so in Ontario, they were not even considered as a married couple. Subsequently, they were legally married in Florida several months later. Now they are a legally married couple.

 Any other definitions in Newfoundland would create an ambiguous intermediate class of people who are not legally married and do not believe themselves to be legally married, but may nevertheless be spouses under the Act. It is difficult to foretell whose relationships might afterwards be characterized as marital or conjugal.

 Cohabiting couples often hope or plan, with varying degrees of commitment, to live together exclusively for life. Sometimes couples who are not married choose to pass as a married couple to ease some particular social situation. It would be difficult for a court to piece together, from fuzzy memories clouded by pecuniary consequences, all the various promises of a conjugal relationship to discern whether the couple’s commitments passed some threshold of firmness. And taking the law it prophecies of what the courts will do in fact, it would be impossible for many couples to tell whether they would turn out to be married or not married.

After a breakup of the marriage, this uncertainty would take the form of needless, acrimonious litigation. The formalities of a legal marriage ensure clear evidence of the parties’ intentions. Creating an intermediate class of semi-marital relationships will invite the parties to present wide-ranging evidence about the nature of their relationship and intentions—with some being true and others no so.

 People often have mixed or complex reasons for their actions. They rarely leave unambiguous evidence of those reasons. Litigation will often invite a broad analysis of each party’s character and conduct and often an unflattering one that will undermine the statutory policy of keeping the matrimonial property regime separate from any moral evaluation or condemnation of misconduct.

The statutory text, a long and cogent line of jurisprudence, the scheme of the Act, respect for couples’ autonomy, and the need for certainty all imply that a couple only enters a form of marriage “in good faith” if they intended to become legally married.

The Court of Appeal said, “Mr. Bussey and Ms. Dwyer are not married and, because they deliberately chose not to enter into a legal marriage, they did not enter into a form of marriage in good faith therefor they are not spouses.”  

Her appeal was dismissed. Because the case was a novel one, the court didn’t order her to pay the costs of the appeal.