Editorial: Married, involuntarily

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On March 18, B.C.’s new Family Law Act came into effect, replacing the 1978 Family Relations Act. The new act gives those living in a marriage-like situation (i.e. shacked up) for longer than two years rights to income or property accumulated while co-habiting. The law will also make couples responsible for half of each other’s debt taken on during the relationship, including student loans and credit card debt.

For common-law partners who want to keep their loved one close but their finances apart, this is unwelcome news.

Under the previous Family Relations Act, common-law partners had to duke it out in court to prove they contributed to their partner’s wealth. But now, after a landmark case that went to the Supreme Court of Canada involving a shared home, the B.C. legislature has made major changes to the structure of common-law relationships. The legal definition of a “spouse” will now be: married couples, people living together in a marriage-like situation for more than two years and people living together for under two years who have a child together.

For many of us, the definition of marriage has been changing since we were kids. The shocking divorce statistics of the late ’80s and ’90s spurred more people to engage in common-law arrangements, become single parents, or simply live somewhat together rather than put a ring on anything. The ability to share your life with someone without sharing your property or finances can take a lot of pressure and frustration out of a relationship. And in the long march towards gender equality, many women are more financially independent, reducing the need for shared income.

But now, without any consent, the B.C. government will automatically formalize many couples’ situations under these rules. Doesn’t the government have as little place in our bank accounts as in our bedrooms? Who are they to define the nature of our relationships by fiat?

The B.C. Family Law Act has also drawn criticism from some factions of the LGBTTQ community. Marriage only became legal for same-sex couples in Canada in 2005, and for many, the delineation between being wed and unwed is of paramount importance. While some fought tenaciously for the right to marry, others deliberately chose the common-law lifestyle post-2005 because they did not believe in marriage as an institution or the hard line it draws when it comes to division of property.

In an Xtra interview, one self-identified feminist lesbian said, “We’ve all structured our lives without marriage being there, and essentially the state has now decided we’re married.” The B.C. government has stated that it consulted more than 500 organizations and individuals while revising the act, including “men’s and women’s groups, community-based organizations, and multicultural and aboriginal family services,” with a notable lack of emphasis on LGBTTQ representatives. Of the 36 organizations, agencies and ministries that were consulted, only one focused exclusively on queer rights (the Canadian Bar Association’s Queerlaw Group).

It’s clear that this legislation is problematic for many of us. It’s noble to want to protect common-law partners from being forced to battle in court for their legal share — but shouldn’t setting the terms of your arrangement be your own responsibility and choice?

It remains to be seen whether or not the backlash against this legislation will cause any rewriting of the law. But if nothing else, at least it is a reminder for all of us to think carefully about the decision to live with our partners. As any lawyer will tell you, a pre-nup (or pre-live-together) can do wonders for your peace of mind.

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