Monday, April 21, 2008

Can the state force your marital status?

One of the debates, I often find myself involved in is the idea of "Common Law" Marriage.

First of all, let me clear up the first misconception. Being 'common law' and being 'married' are not the same thing from a legal point of view.

There are similarities. In Canada, many couples who have declared themselves as common law are guaranteed similar rights and privileges under the law as married couples. Although specific local laws can vary. The basic premise is the same. If you're in a loving committed relationship with another individual, live in the same household, you should get the same rights as those who sign a piece of paper and pay for a 'marriage license'.

The main legal separation is that marriage is a legal contract is entered between individuals. In a common law relationship there is no legal paperwork to be completed or signed, any "contract" is purely verbal. Now, verbal contracts to have power under the law, but are not as cut as dry as paper contracts.

Now, the thing I find myself passionately arguing about is a phraseology that will me found in many government documents, such as tax applications, and applying for government assistance and/or Childs Tax credit.

These documents define the necessary conditions required to be guaranteed the same/similar rights and protections as a married couple. The fact that you meet these conditions is not sufficient to define your status as common law.

Let's state this again for clarity:

Q is necessary for P : If you want to be a considered common law couple you must meet the conditions required under law

Q is not sufficient for P: The fact that you meet the conditions under law, does not require you to be a common law couple.

There is one key missing condition in the definition given by the government of Canada to truly create a necesary and sufficient relationship

Both individuals of the couple, must agree to be within a common law relationship
This agreement can be shown to be true, once both individuals have declared themselves to be living as common law. For example, perhaps they both refer to each other as husband and wife amongst themselves, family and friends.

It does not matter to whom they have made this declaration. -> Once the necessary conditions exist, only the declaration remains. So for example if you declare it on your tax form, you are common law, if you declare it on your childs tax credit application you are common law. If you declare it to you mom you are common law...Period. If you declare it in one place, and meet the necessary conditions, you are common law. So, if you and your partner declare it to your parents, you meet the legal requirements, and then you do not delcare it on your income tax, you would be committing fraud.

Of course, after declaring it to your parents, the relationship might devolve, in which case you can revoke your declaration (or you just stop living together), and the common law ends. (ie: There is NO SUCH THING as 'common law' divorce).

So why is this even worth ranting about, I am a happily married guy, but I rant on to try and help avoid mis-conceptions that exist. I am tired of hearing people telling others they are common law. No one can declare you to be common law. You are responsible for making that declaration to others.
In conclusion, you get specific rights, and benefits once you declare yourself as common law. It is not about trying to find a loop hole in our social benefits system. Some people try to do this. The idea is instead of getting "married" you just have a "commitment ceremony". This way [they think] the government cannot combine their income and reduce the social benefits they are currently receiving. Of course, as I have just said, this would still constitute fraud because the couple has declared their relationship status to a large group (via the commitment ceremony), so once they meet the remaining legal conditions, they are common law, and therefore have the rights, benefits, and responsibilities as in a married (or common law) relationship.

So, I defend the rights of others to defend their rights not to have any label placed upon them that they didn't agree to. But if you did agree to it, you will reap the benefits, and at the end of the day the only costs you might save, is the bill for the marriage license itself [and I suppose a wedding and stuff, depending on how frugal you are].

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Understanding Necessary versus Sufficient Conditions


Jason D. said...

Great article, very important thing to get out in the open and cleared up. What if only parter refers to themselves as common law and other other doesn't? Also, have there been any researchable court cases in which the status of a common law relationship has been disputed?

Brad D. said...

Common Law marriage requires mutual consent of both parties. Though I suppose of one person stated it openly and the other person didn't refute it, it *might* be considered as aceeptance

I am unaware of specific court cases disputing common law marriage under the guise of reducing/elimination tax and/or social benefits to the co-habitating couple

The most common precendence would be during estate probating. When one party dies and he/she was living with another. The survivor (if common law) may have to fight to receive benefits especially where a) no last will and testement is present and b) their is dispute among the family.

You can find more information at this Wiki article