SAME SEX AND COMMON LAW MARRIAGES

On Family Law for residents in Alberta  

You are in a common law relationship if you live as a couple but are not married. The law recognizes common law relationships between opposite–sex and same-sex couples after the couple has been in a marriage-like relationship for a certain amount of time.  Under most federal laws, that time is one year.  Under the Alberta Adult Interdependent Relationships Act, that time is three years. Under the Family Law Act, once an Adult Interdependent Relationship (AIP) has been proven, then the common law spouses are treated in the same manner as a legally married spouse.

Property Rights
Although there have been significant changes in applicable laws which have extended many of the rights and responsibilities of marriage to common-law couples, there are still very significant differences.

If you are in a common-law relationship, you must be aware of the following:  

Unlike marriage, there is no presumption that assets should be divided equally at the end of a common-law relationship. Common-law asset division, is based on trust doctrine where the spouse who does not have legal ownership of the property (i.e. their name is not on the title or ownership documents) must prove they deserve a share of the property.  A spouse may do this by showing that they made monetary contributions or a contribution of time and effort that exceed the value of benefits they received. The non-owning spouse must show:

That he or she suffered a deprivation or loss because of his or her contribution;
That the owning spouse received a benefit or gain (e.g. an increase in the value of the property) from the contribution of the non-owning spouse; and
That there is no fair reason for the non-owning spouse’s efforts to go unrewarded.

The courts will conduct a cost-benefit analysis and determine whether the non-owning spouse received as many benefits or more benefits than they conferred on their spouse. If the non-owning spouse gave more benefits than they received, an interest in the property and/or some money may be awarded to them as compensation.

The Adult Interdependent Relationship’s Act provides that Adult Interdependent Partners (AIPs) may enter into an agreement to govern their relationship, including property issues in a specified form. The AIPs may set out their respective property rights in this agreement, which will then govern their mutual property rights instead of relying on the court to apply the principles of constructive trust in the event of a separation.

Please contact us before signing any document regarding your rights in your relationship.

The Supreme Court of Canada has ruled in Nova Scotia (Attorney General) v. Walsh that it is not discriminatory under the Charter of Rights and Freedoms for the law to treat the division of property subsequent to a common law relationship differently from that subsequent to a marriage. This means, in effect, that the court is under no obligation to make an equal division, or any division, of property in a common law marriage.


Common Law Custody and Child Support
When two people (either of different sexes or the same sex) live together without being legally married, they may acquire rights and responsibilities with respect to custody, guardianship and access.

With respect to custody of and access to a child born in a common-law relationship, there is no substantial difference between the law relating to married and non-married couples. See Custody and Access.

With respect to child support, there is also no substantial difference between the law relating to married and non-married couples except that a stepparent may be liable for support their stepchild if certain conditions have been met. See Spousal and Child Support.

Common Law Spousal Support
Where on the separation of a common law couple (either opposite-sex or same-sex) one spouse is dependent upon the other, the Court may require spousal support to be paid, but only if the spouses lived together in a marriage-like relationship for a period of at least 3 years.

Some cases have concluded the spouses need not reside under the same roof to be in a marriage-like relationship. Consider that a person may also be able to be in a spousal relationship with more than 1 person at the same time. This means long-term affairs could lead to a support order.

Same-sex spouses may face problems of obtaining proof from third parties supporting their marriage-like relationship because of social pressure and bias, particularly if they have tried to keep their relationship secret.

Studies referred to in recent Charter challenges at the Supreme Court of Canada have indicated same-sex relationships tend to be more egalitarian that opposite sex relationships. Traditional roles of breadwinner and homemaker do not seem to be as common in same-sex relationships. Nevertheless, there are no doubt a great number of cases where a same-sex spouse has suffered a disadvantage because of their role in the relationship and/or as a result of relationship breakdown.  There are few reported legal cases, however, possibly reflecting a historical of fear of disclosure of same-sex relationships or the general (erroneous) belief that same sex partners are not entitled to support.

What is the test for proving a marriage-like relationship?
In the case of M. V. H. (1999) 2 SCR 3, the Supreme Court of Canada stated:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other "conjugal" characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal".

All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.

For more information on Sean O-neil visit www.oneillaw.ca