Friday, December 20,2002
Canadian high court rules on unmarried couples and their property rights
A story released today by the Canadian Press reports that according to the Canadian High Court, if your common-law love affair goes bust, don't count on getting half your ex-mate's assets.
The Supreme Court of Canada ruled 8-1 today that a Nova Scotia law requiring divorcing couples to evenly split assets shouldn't ensnare common-law couples.
The court stressed that those who hit the altar explicitly accept property rules. Others should be allowed to avoid such strings.
"In my view, people who marry can be said to freely accept mutual rights and obligations," wrote Justice Michel Bastarache for the majority.
"A decision not to marry should be respected because it also stems from a conscious choice of the parties."
The ruling overturns a Nova Scotia Court of Appeal judgment, which found that a section of the province's Matrimonial Property Act unjustifiably breached equality rights.
The act requires married spouses to share most assets 50-50 upon divorce, but excludes common-law couples.
Unmarried couples can sign a contract or subject themselves to other laws that force equal division of personal property, Bastarache wrote.
For example, the 2000 appeal court decision spurred Nova Scotia to pass domestic partnership legislation.
It allows common-law and same-sex couples to register their relationship with the province - if they choose. Registration places couples under the Matrimonial Property Act and other laws governing married spouses.
Even without that change, the act would not be unconstitutional for excluding common-law couples, Bastarache said.
The judgment will guide provinces still grappling with related laws. Most have legislation that only compels married couples to share assets evenly.
Common-law partners are typically allowed to sue only for the share of wealth to which they contributed.
Saskatchewan, Nunavut and the Northwest Territories require a 50-50 asset split for common-law couples who break up.
British Columbia, Quebec and Nova Scotia allow unmarried couples to register or agree to respect such laws.
Ontario, Alberta, Manitoba, Yukon, New Brunswick, Prince Edward Island and Newfoundland require 50-50 asset sharing for married couples only.
The 2001 Census showed that married couples still account for about 70 percent of Canadian families. Common-law couples make up 14 percent.
