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Your Finance
By John Johnson, LL.B
Unmarried —
But Not Single Either
Legal tangles of common-law relationships
Recent information released by
Statistics Canada as a result of the
2006 Census indicates that over
one-half of our population aged 15 and
over has never been married. Twenty
years ago, only 38 per cent of the population
aged 15 and over were unmarried.
This probably explains the increase in
the proportion of common-law couple
families, which rose from 13.8 per cent
to 15.5 per cent. (Two decades ago,
common-law couple families accounted
for only 7.2 per cent of all census families.)
We can include in this group of
common-law couples many senior citizens
who are cohabiting as couples
without the benefit of marriage or
remarriage.
The law, as usual, has not kept pace
with these social developments. In
2002, a Supreme Court of Canada case
involving Mr. Walsh and Ms. Bona went
to our highest court to challenge the
constitutionality of the Nova Scotia
Matrimonial Property Act because it
excluded unmarried cohabitants from
the property-sharing benefits accorded
to married couples.
Our highest court held that it was
permissible for governments to draw
distinctions between married and
unmarried couples with respect to
property rights. The Court stated that
unmarried couples had other remedies,
such as cohabitation agreements, joint
ownership of property and equitable
remedies provided by the doctrine of
unjust enrichment. Freedom of choice
to marry or not marry was therefore
paramount and those who chose not to
marry were opting out of the benefits of
the legislation available to married couples
of their own free will.
Having given many different opinions
as to the likely result of Walsh v.
Bona, lawyers took a collective deep
breath and waited for this decision.Now
that it has arrived, it is clear that the legislature
should step in and make some
amendments to property-sharing legislation
to provide some form of protection
to unmarried couples who are obviously
in need of a realistic remedy similar to
that enjoyed by married couples.
Five years after the Walsh v. Bona
decision,there have been no substantive
changes in the law except that same-sex
married couples are now treated like
opposite-sex married couples and
cohabiting same-sex unmarried couples
are left in the same position as oppositesex
couples “living in sin.” The Family
Law Act still only allows married couples
access to the equalization of the
property that they accrue during the
course of their married cohabitation.
Unmarried couples must protect themselves
with cohabitation agreements
that contractually include or exclude
property they wish to share or not share
without regard to actual ownership.
The legal remedies available to
unmarried couples are not defined by
statute but by discretion exercised by
judges based on equitable principles.
This usually involves lengthy legal proceedings
with much evidence measuring
each party’s contribution to the
property owned by the other and the
detriment to the party making the claim.
Unjust enrichment is measured against
the deprivation of the parties making
the contribution to the property not
owned by him or her.
The whole prospect of weighing
the value of domestic service is, according
to our learned Chief Justice of the
Supreme Court,a process “that systematically
devalues the contributions which
women tend to make to the family economy.”
The loss of shared property rights
in a relationship is a substantial one but
there are other disadvantages suffered
by common-law couples. For instance,
there are none of the possessory rights
to a matrimonial home, which every
married spouse enjoys on marriage
breakdown.An unmarried spouse’s only