Quebec and Common Law Marriage

Jonathan McLeod

January 30, 2013 | 2 Comments

I had intended to write about the Supreme Court decision that upheld Quebec’s policy of not recognizing common law marriage, but then I read this column in National Post by Toronto lawyer Gerard Kennedy*:

The case demonstrates the limitations of courts as appropriate venues to shape social policy. This Quebec legislative scheme did not arise by happenstance. The province’s National Assembly, recognizing Quebec’s changing sexual landscape, gave the issue considerable discussion and debate. It elected to treat de facto couples differently from couples in a legal marriage — not because it felt their unions were of less worth but because it wanted to maximize respect for the autonomous decision not to marry.

The post itself was a little long-winded for the point it wanted to make, and Mr. Kennedy was a little too casual about brushing aside the potential for exploitation of vulnerable women, but his conclusion is correct. The decision was correct. Quebec has every right to construct their own rules about marriage as long as they are applied evenly and there aren’t onerous barriers to having one’s marriage recognized.

Further, beyond just the correct judicial ruling, this sound policy. It is true that lack of common law protection will expose women in vulnerable situations (whether that be socio-economic class, financial status, an abusive relationship…) to hardship, we cannot expect that a policy that infantilizes women** will also empower them. Certainly, in decades past, when women were far more dominated by men, the policy of recognizing and enforcing common law marriage made great sense, but that is no longer the world we live in.

We have greater female empowerment, now. We have stronger social safety nets. We have greater compassion for women (and children) at risk. Things are far from perfect, and we should focus more of our efforts on ensuring that women are not so vulnerable, so exposed, but there is a better way of doing it than assuming that they cannot make sound, reasonable decisions for themselves.

*No, not that Gerard Kennedy.

**Yes, I know. Common law protection applies to both men and women, but historically, women have been the disadvantaged half of these couples, and this is a power dynamic that is still prevalent today. If we’re looking at the policy from its original purpose, it was designed to protect women.


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