An Evolving Society

I was discussing her work with a friend of mine who acts as an auditor for a Pension Fund. One of her major problems was to know the marital status of the employees that were covered by the benefits of the fund. Were they married, divorced, shacking up, cohabiting, living common-law, common-law but separated, equivalent to married for purposes of pensions but not for welfare or the Income Tax Act, cohabiting homosexuals, or what have you, and if so, what were the legal implications? I didn’t envy her task.

In truth, the modern permissive society has led to an incredible variety of domestic arrangements, and a legal morass when it comes to sorting them out in the event of death or breakdown of the relationship. A husband who has lived common law for twenty years and brought up a family gets run over on the highway—and his undivorced wife of twenty five years back appears from nowhere and scoops up his estate. A woman whose common law union has lasted for thirteen years is appalled that her husband is not even guilty of adultery when she finds him in bed with another. A faithful wife who works to assist in her husband’s career finds herself with no remedy when her husband divorces her, unless she takes advantage of the Matrimonial Property Act (which involves a limited time for taking action). And so on.

It strikes me that our classical model of marriage, with all the rights, ceremonies and responsibilities that the law provides, is failing to satisfy the needs of society. In the past year, no fewer than five couples have asked me to perform the wedding ceremony for them, but in all cases, the religious setting, symbolism and preparation is not what they want, so I have had to disappoint them. The last three children I have been asked to baptize all have had unmarried parents.

What we need is something much simpler and more comprehensive than the variety of arrangements that take place today. What I suggest is that, as an alternative or a supplement to marriage, we devise a Registered Cohabitation Agreement.

Any couple, regardless of the sex of any of the parties, would then be able to go to their local License Issuer, and provided they were not already registered as the cohabiting partner of some other person, could register their relationship. Without such registration, no legal rights or obligations of any kind would accrue to any party at all.

In registering the Agreement, there would be a checklist of rights each gives to the other. The Canada Pension Plan (and other private or employment pensions), The Divorce Act, the Dower Act, the Income Tax Act, the Insurance Act, the Matrimonial Property Act, the Wills Act, the Workers’ Compensation Act. The question of custody and maintenance for children arising from the arrangements would be decided in advance, subject to statutory minimum requirements. I am sure the list could go much further.

Termination of such an agreement could be immediate by mutual consent, or on three months’ notice by either party to the other. No muss, no ill feeling, no lawyer’s costs. You didn’t ask for the fully protected and tied down status of matrimony, so don’t complain if you don’t get it.

The point is, that marriage is a relationship established by the promises of the couple involved, supported and sanctioned by society. Society needs the relationship to be publicly known and acknowledged, and has a responsibility to see that the care and support of children is looked after, but couples do not have to be blackmailed into traditional rites and ceremonies as the only means of entry into their state of wedded bliss. Nor do we need a complete uniformity of rights and obligations for every couple who decide to cohabit. Nor do we have to put up with the confused and expensive situation that we have nowadays, when a relationship breaks down.

I recall our late Ombudsman, Randall Ivany, suggesting that it was time for a change in our marriage arrangements. Maybe it’s time that the Alberta Law Reform Institute took him up.

– Gemini, February 1996
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