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Shirley Bond, Minister of Justice of British Columbia. (BEN NELMS/REUTERS)
Shirley Bond, Minister of Justice of British Columbia. (BEN NELMS/REUTERS)

Globe editorial

The right not to marry Add to ...

It can be tough sometimes waking up married. Especially if you didn’t know what you signed on for.

In British Columbia, couples who have been living together for two years woke up on Monday to discover they have rights and obligations nearly identical to those of married people.

The most important of the new rights and obligations is to share property and debts. If one person owned a condo before the couple lived together, the other has a right to share half of the growth in its value. If one person acquires debts from, say, student loans, the other would be on the hook for half of the debt.

And because it’s B.C., a bellwether of social change (Saskatchewan and Manitoba already have similar rules, but most of the country doesn’t), the new principles may eventually be coming to a province near you.

It’s a momentous change because it attaches life-changing consequences to what are in some cases informal living arrangements. When the state intrudes in an intimate sphere, it changes that sphere.

Say a family gives their daughter a present of a Vancouver condo so she doesn’t have to pay rent during her studies. Her destitute boyfriend moves in, acts abominably, and in two years moves out and demands half the increased value of her condo. The state’s intrusion raises the stakes.

British Columbians who woke up unhappy to be in effect married may wish to consider the Irene Murdoch case. It still haunts Canada.

In 1973, after 25 years of marriage, Mrs. Murdoch of Alberta, a farm wife, described her duties in divorce court: “Haying, raking, swathing, moving, driving trucks and tractors and teams, quietening horses, taking cattle back and forth to the reserve, dehorning, vaccinating, branding, anything that was to be done.” Routine work of a farm wife, said the trial judge. The Supreme Court of Canada affirmed it. She was not entitled to share in the property.

B.C. Justice Minister Shirley Bond says the reason for mandatory property and debt sharing for common-law couples is “fairness, obviously.” When the government held public consultations, “I heard numerous examples where separation had occurred after 15 or 20 years. After 20 years the property most often went to the person in whose name the property was registered. In many cases, not all, that was the man.” (There were methods of challenging that type of unfairness in court, but they were uncertain and costly.)

Ms. Bond has a point.

Nowhere is the social change around living together more pronounced than in Quebec. In the old days – which ended in 1981 – this arrangement was known as “concubinage” in the province’s Civil Code. These couples did not even have the right to sign a contract on who gets what if they break up.

Today, young Quebeckers are living together in large numbers. Among those under 35, 51 per cent of couples live in what the province calls de facto unions. Overall, 38 per cent of unions in Quebec are de facto unions. In British Columbia, the figure is just 16.4 per cent. In Canada as a whole, 20 per cent. There is little call, even from feminists, to introduce the rights and obligations of marriage. Far from it. The Quebec state is often interventionist – even married people can’t opt out of property sharing by signing a pre-nuptial agreement – but it stays out of the bedrooms of de facto unions. No mandatory property sharing. No possibility of spousal support.

By comparison, Ontario provides for spousal support where an individual is left in need after a break-up. Many people believe, wrongly, that there is also an obligation to share property. University of Toronto law professor Brenda Cossman says she has threatened to bring legal textbooks out at dinner parties to prove to people that there isn’t.

This winter, a wealthy Quebec woman challenged the province’s laissez-faire approach to property division all the way to the Supreme Court of Canada. The woman was receiving more than $34,000 a month in support for her children; she was no Irene Murdoch. The court said the province has the right to favour autonomy and choice.

The answer to “fairness, obviously,” is “choice, obviously.”

Our view is that autonomy and freedom of choice should not be as encumbered by state interference as it is in British Columbia.

People live together for a variety of reasons. They might wish to share costs, or help out an insolvent lover. They might be using it as a test run for marriage. People who have been married may prefer something reasonably easy to get out of.

Whatever the reason, they’ve made a choice. Ms. Murdoch was powerless. She had no choices.

Each province has to solve these conundrums in ways that make sense to them. But here’s a reasonable tweak to B.C.’s approach. B.C. says cohabiting couples can simply opt out of the marriage-like obligations. All they have to do is sign a contract. This is the state version of negative-option billing: You’re given something you may not want, unless you sign a contract saying you don’t want it.

The opt-out is far from simple. The individuals will need to pay for lawyers. Even then, the opting out is “semi-illusory,” says Vancouver lawyer John-Paul Boyd. “You can still apply to have the contract set aside under the Family Law Act.”

Why not – in our era of choice and diversity – allow couples who live together to sign on to marriage-like obligations if they wish? It’s simpler, it’s less likely to invite costly litigation down the road and it’s consistent with an important principle – that the right to marry implies the right not to be married.

 

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