Love with marriage becoming as outdated as a horse and carriage

Joyce Blond Frank B.A., B.C.L., LL.M.

June 2011

Shakespeare said: “If music be the food of love, play on.” Mendelssohn and Wagner both wrote beautiful wedding marches. A more recent song says: “Love and marriage go together like a horse and carriage.”

There are few formalities attached to the process of getting married; it’s easy to do. Yet in Quebec, more than 30 per cent of couples live together without going through the marriage ceremony. What difference does it make in their lives?

There are certain rights and duties that come with marriage. These relate to the home, financial and moral support, the care and upbringing of children, household expenses, the ownership, use and sharing of property and rights of succession. Then, of course, the consequences of a potential breakdown of the relationship and ensuing legal separation or divorce can be complex and hiring lawyers, accountants and psychologists to help in the process very expensive.

Plato envisaged a republic in which men and women would share equally in all things insofar as physical strength permitted. However, it was as recent as July 1, 1964, that married women in Quebec were granted judicial capacity. Until then, they were considered incapable of doing most things without the consent of their husband.

The man ran the household, administered the assets, made all decisions pertaining thereto and his wife swore obedience to him.

Very few women worked outside the home. He earned the family income and he paid for purchases that then belonged to him. The law did provide one protection for the married woman, namely community of property by which the wife would share in the ownership of assets should the marriage break down and the couple separate.

In spite of this protection, many women went to a notary prior to the wedding ceremony and signed a marriage contract making them separate as to property.

This permitted them to own and administer their own property but gave them no right to share in property accumulated during the marriage and held in the name of the husband. The result was that often when a marriage broke up the husband owned all the assets and the wife had nothing.

The 1970s brought many social and political changes to Quebec. More women worked outside the home, the Canada Divorce Act came into effect in 1968 providing married couples an exit door from the marriage. By 1980, the husband and wife were considered to be equal partners in the matrimonial relationship and the running of the household and expected to share equally in the decisions and responsibilities of the family.

We finally caught up to Plato!

The law provided for support (alimony) as well as for some compensation under certain circumstances where it could be proved that one of the parties (usually the wife) had increased the wealth of the other (usually the husband) to her (his) own detriment.

In most cases, the courts held that domestic work was not subject to compensation. The parent who stayed home and raised the children was doing the job expected and not entitled to compensation. As this in most cases was the wife, she could be left with nothing upon the breakup of the marriage. To help rectify this situation, in 1989 legislators introduced “family patrimony,” which gave both spouses shared rights in certain family property such as home(s), cars, furniture and registered funds.

In spite of this increase in protection, an increasing number are living together as a family without marriage. Individuals are free to choose how they want to live and where the choice is to live outside the protection of matrimonial law that choice must be respected.

There are cases where one or the other member of a couple living together as a family unit, with or without children, is left without any assets and without the right to claim support upon the breakup of the relationship. In a 2003 Quebec Court of Appeal judgment, it was held that it was important to validate the freedom of choice of the individual and, in the absence of applicable legislation or a contract between the parties regulating the economic aspects of the relationship, the court would not interfere.

In addition to the occasional granting of a compensatory payment, in some very limited number of cases the court has been willing to recognize the existence of a tacit partnership between the parties and order that assets be shared. Children are protected whether or not their parents are married. Those who do not enter into marriage form a large and ever increasing group which, although no longer outside the boundary of social acceptance, is still outside the realm of legal protection.

Often these couples refuse to consider the protection marriage would bring them.

They also do not want to think about setting out their respective rights and obligations and regulating economic matters between them in a pre-living-together contract although the courts have recognized such agreements.

Until the law is changed, as an attorney I urge them to manifest their love in a document that will protect them against all contingencies. And remember, you can live together forever without marriage, but your partner will not inherit any part of your estate unless you have a will.