Abolish legal marriage

[Charles Anthony]

One thing that I wished (although, it does not surprise me that it never happened, Canadians usually want to have their cake and eat it too) was that the gay-marriage controversies went the other way:

Simply abolish the legality of ANY marriage.

Abolish any legal benefits attributed to marital status.

The government does not discriminate based on our favorite color so it should not discriminate based on our "marital" desires.

Marriage should not be a legal issue. The state should not be registering us by our marital status. We should not be treated differently based on our marital status. Benefits to anybody should not be determined by our marital status or any other status.

Whatever happened to the concept of treating people equally?

Whatever happened to the state getting out of the bedrooms of the nation?

If people want to get married, go to a church.

If people do not want to go to a church, go to hell but do not expect the taxpayer to subsidize the legality of your "marital" status.

[Riverwind]

Abolish any legal benefits attributed to marital status.

Marriage confers a wide range of legal benefits and obligations that have nothing to do with tax policies or social programs. For example, your spouse is considered 'family' and is given legal standing if you die or are incapacitated. Furthermore, people who are married typically pool their economic resources which means there need to be rules to deal with the economic aspects marriage breakups. For these reasons alone, society needs a formal contract that people need to sign when they form a committed partnership.

The fact that people pool the economic resources is the reason why most social programs look at family income instead of individual income when calculating benefits. It simply does not make sense to be handing out welfare to a stay at home parent with zero income who is living with someone making 100K/year. For this reason, there has to be some objective test to determine if someone is in a committed partnership.

Some people have suggested that the gov't get out of the marriage business and call the equivalent legal concept a 'civil union' or a 'domestic partnership'. I think this is a waste of time because it would cost a lot of money to rewrite a bunch of laws and regulations that would change nothing of substance.

[August1991]

Simply abolish the legality of ANY marriage.

Impossible. Marriage is simply a contract; it is the public statement of a meeting of minds, or souls.

Charles, you are asking for the abolition of the legality of a long term, publicly-stated, honestly-committed "contract" between two people.

I doubt anyone, male or female, would agree to abolish it. (Commit to such a contract is another matter... )

[ClearWest]

I agree with Charles. I don't think he's suggesting that we disallow contracts between two people. Just that there should be no legal definition of marriage, nor should anyone have to get the government's approval to make such a contract. If two people want to pool economic resources, they may do so. They can sign a paper between themselves or make a verbal commitment. No government necessary to regulate a voluntary exchange between two people.

It shouldn't matter whether they consider themselves husband and wife, husband and husband, brother and sister, or roommate and roommate. It's none of the government's business. Of course, this would be less complicated if it weren't for taxation, which is a government imposition in the first place which leads to all sorts of other complications such as spousal benefits. Do platonic partnerships get any tax benefits? How can you pick and choose which partnerships get public support and which do not?

Gov't should stop being so robotical and mathematical about deciding who gets welfare and who doesn't. People with no income in their minds need support--but Oh! They're 'married' to someone making 100k. Add that variable to the formula. Then they try to define marriage; problem! Different people have different definitions. The original definition was one set by the church several thousand years ago, between man and woman. Of course, some people don't like that so they change it to mean between two people. Add another variable to the equation. What next? Oh, the polygamists aren't being included. There's going to be a whole debate about that now. Another variable. And after that? I don't know but I'm sure they'll come up with something. And I'm sure it's going to be the same old same old battle between the traditional Conservatives and the progressive Liberals and socialists. It will be a constant tug-o-war and it will take years, but eventually all the definitions that different people have lived by over the years will be infused into one big stew of mono-culture. Just as it always happens.

Let's just get government out of the way and let people decide their own morals and standards and traditions without having to get the approval of the rest of society.

[geoffrey]

This idea isn't completely without basis.

I advocate something similar. Have the religious or personal aspects of marriage seperate from the tax benefits. Have the government recognize all living arrangments appropriate for benefits, have people decide what their relation means to them, or what they want to call it.

[Guest Warwick Green]

This idea isn't completely without basis.

I advocate something similar. Have the religious or personal aspects of marriage seperate from the tax benefits. Have the government recognize all living arrangments appropriate for benefits, have people decide what their relation means to them, or what they want to call it.

I don't necessarily disagree with you but so long as there is any legal or tax preference given to domestic partnerships, the arrangements that qualify for this have to be spelled out. One can assume that adult one-on-one partnerships (either hetero or homo) would be covered but what about other arrangememts - polygamy, a brother looking after an invalided sister, as examples.

[Renegade]

Abolish any legal benefits attributed to marital status.

Marriage confers a wide range of legal benefits and obligations that have nothing to do with tax policies or social programs. For example, your spouse is considered 'family' and is given legal standing if you die or are incapacitated. Furthermore, people who are married typically pool their economic resources which means there need to be rules to deal with the economic aspects marriage breakups. For these reasons alone, society needs a formal contract that people need to sign when they form a committed partnership.

The fact that people pool the economic resources is the reason why most social programs look at family income instead of individual income when calculating benefits. It simply does not make sense to be handing out welfare to a stay at home parent with zero income who is living with someone making 100K/year. For this reason, there has to be some objective test to determine if someone is in a committed partnership.

Some people have suggested that the gov't get out of the marriage business and call the equivalent legal concept a 'civil union' or a 'domestic partnership'. I think this is a waste of time because it would cost a lot of money to rewrite a bunch of laws and regulations that would change nothing of substance.

The problem with Government defining marriage is not just that it defines the terms, but that it restricts who can partake in the contract. It would be fine if all the government did was define a default legal arrangment, but then left it up to participants to either accept the arrangment as-is or modiy it to suit their needs. Further government should allow any adult parties to enter into this arrangement or create their own multi-party arrangement.

Marriage is such an important arrangement that you should have to explicitly choose this legal arrangement, that is why I am very much against defaulting couples who live together into common-law marriage.

[Charles Anthony]

"Marriage is such an important arrangement that you should have to explicitly choose this legal arrangement, that is why I am very much against defaulting couples who live together into common-law marriage."

Bingo! You hit the nail on the head!

That is exactly what we have now and it flies directly in the face of marriage. Thus, in all practicality, we DO NOT have a legal definition of marriage anyway regardless of what side of the fence you prefer to sit. Again, we have an illogical law or a legal system for people who want it both ways.

If you shack up long enough (or long enough to convince a judge or long enough for "society" to decide on your behalf without your consent) and then break up, either party can sue the other for effectively what becomes analogous to alimony. Whether you agreed to this contract or not does not matter. The agreement is inferred on your behalf without consent.

CAVEAT: I am not arguing whether this is right or worng, but rather I am pointing out an illogical set of concurrent laws.

The people who say Marriage Is Sacred must deal with shackers sharing their same sacred legal status. (If you want it to be sacred, keep it in church and do not ask the government to grant you holiness.)

The people who just want the tax-benefits must justify their special status to tax-payers who are single and do not feel that they are owed a free-lunch. (Yeah, saying that marriage/common-law/couples/shack-ups leads to children therefore we need to protect children is a magnanimously convincing excuse. It is only when ugly parents pit children against eachother in a messy divorce AND MONEY IS INVOLVED that we all get soooo concerned about the children.)

The people who just want protection from a possible break-up DO NOT need a legal marriage status. They can get it from a lawyer. It would be cheaper and the same. The government would only need to spend tax-payers dollars if:

- the two sides of the contract break up

and

- the two sides of the contract can not come to an agreement themselves

and

- the two sides of the contract EACH think they are better off going through the court system

Kind of like what we have now, is it not???? except that we do not have to start off with government bureaucracy (ooohh, the public service jobs that would be lost!) and we do not have to continuously lobby our politicians on our behalf to change the laws (ooooh, the lawyers and members of parliament who would be out of work!!)

As suggested, we could have "a default legal arrangment" in the same way as we have wills and last testaments.

Now, those who insist on having the tax-payer pay the bureaucrats of the provincial government to rubber stamp their pliable legal status, what exactly do YOU want?

[Guest Warwick Green]

"Marriage is such an important arrangement that you should have to explicitly choose this legal arrangement, that is why I am very much against defaulting couples who live together into common-law marriage."

There is nothing to prevent common-law couples from declaring that they are "married"; perhaps even signing a contract to that end. Then they should be treated as being married.

[Leafless]

Charles Anthony

You wrote:

"That is exactly what we have now and it flies directly in the face of marriage. Thus, in all practicality, we DO NOT have a legal definition of marriage anyway regardless of what side of the fence you prefer to sit. Again, we have an illogical law or a legal system for people who want it both ways."

The original definition of marriage did not include shackers or gays.

Marriage: "The legal union of a man and a women in order to live together and often to have children."

It's main purpose is allow couples to legally procreate , give children a legal name and to raise them in a responsible moralistic way.

In Canada it has mostly been strongly associated with Christianity and it's churches of various denominations.

Marriage needs no legal definiton as it has been used by religions world wide for thousands of years.

What we need is a government that respects the religious traditions of the majority and does not destabilize the original concept of marriage like what the Liberals have done here in Canada.

[Riverwind]

The people who just want the tax-benefits must justify their special status to tax-payers who are single and do not feel that they are owed a free-lunch.

Charles, you have your facts wrong. Single income income families get a small tax deduction but that is insignificant when compared to all of the government programs that the spouses no longer qualifies for due to their 'married' status. In other words, the gov't does _not_ subsidize marriage - the gov't actually penalizes people who choose to get married. The only reason people get married is tradition and the legal protection/rights that are part of a marriage contract.

[Guest Warwick Green]

Charles Anthony

You wrote:

"That is exactly what we have now and it flies directly in the face of marriage. Thus, in all practicality, we DO NOT have a legal definition of marriage anyway regardless of what side of the fence you prefer to sit. Again, we have an illogical law or a legal system for people who want it both ways."

The original definition of marriage did not include shackers or gays.

Marriage: "The legal union of a man and a women in order to live together and often to have children."

It's main purpose is allow couples to legally procreate , give children a legal name and to raise them in a responsible moralistic way.

In Canada it has mostly been strongly associated with Christianity and it's churches of various denominations.

Marriage needs no legal definiton as it has been used by religions world wide for thousands of years.

What we need is a government that respects the religious traditions of the majority and does not destabilize the original concept of marriage like what the Liberals have done here in Canada.

Even Harper wants to give gay unions the same legal rights as hetero marriages. The only difference would be that they would not be called "marriages". This would be the same as the UK situation where people are starting to refer to registered gay partnerships as "marriages". I don't think it will come to that since I believe that the HofC will vote to retain SSM. Very few MPs will want to suffer all the lobbying from gay activists and the religious right that would occur if Harper were forced to bring in a bill abolishing SSM.

[Renegade]

"Marriage is such an important arrangement that you should have to explicitly choose this legal arrangement, that is why I am very much against defaulting couples who live together into common-law marriage."

There is nothing to prevent common-law couples from declaring that they are "married"; perhaps even signing a contract to that end. Then they should be treated as being married.

Sure common-law couples can declare and sign a contract that they are married, but how does a couple who just want to just live together declare that they want to be considered "not married"

[Guest Warwick Green]

"Marriage is such an important arrangement that you should have to explicitly choose this legal arrangement, that is why I am very much against defaulting couples who live together into common-law marriage."

There is nothing to prevent common-law couples from declaring that they are "married"; perhaps even signing a contract to that end. Then they should be treated as being married.

Sure common-law couples can declare and sign a contract that they are married, but how does a couple who just want to just live together declare that they want to be considered "not married"

They could sign a contract too...

[Renegade]

"Marriage is such an important arrangement that you should have to explicitly choose this legal arrangement, that is why I am very much against defaulting couples who live together into common-law marriage."

There is nothing to prevent common-law couples from declaring that they are "married"; perhaps even signing a contract to that end. Then they should be treated as being married.

Sure common-law couples can declare and sign a contract that they are married, but how does a couple who just want to just live together declare that they want to be considered "not married"

They could sign a contract too...

They could try however as far as I am aware, there is no provision in law for them to do so. The law views them as married. Any contract they sign to declare themselves "not married" would be as valid as a contract a healthy individual would sign declaring themselves disabled.

[Guest Warwick Green]

They could sign a contract too...

They could try however as far as I am aware, there is no provision in law for them to do so. The law views them as married. Any contract they sign to declare themselves "not married" would be as valid as a contract a healthy individual would sign declaring themselves disabled.

If you live in a province where there are statutory minimums in the event of a marriage break-up, you will have to ensure you don't stay shacked-up long enough to have a legal common-law relationship. Or perhaps, agreeing that you are not cohabiting, just sharing an apartment - which is common among opposite sex persons these days.

[Renegade]

If you live in a province where there are statutory minimums in the event of a marriage break-up, you will have to ensure you don't stay shacked-up long enough to have a legal common-law relationship.

It does not seem to me to be reasonable to ask people to move out every year or two so that they avoid being labled as common-law. The fact that you would have to do this is exactly the point. The government has decided that it should be the custodian of the definition of who is married. What you are suggesting is that you should go through contortions to evade the definition. What I am suggesting is it that it should be completely up to you to decide whether you consider yourselves married or not, and not up to the government.

BTW, it is far from clear what you are suggesting would even work. Even if you moved out for a period of time, if you intended to move back in, you would likely still be considered common-law married.

Or perhaps, agreeing that you are not cohabiting, just sharing an apartment - which is common among opposite sex persons these days.

How exactly do you agree that you are sharing an apartment but not cohabiting? Do you sign a contract that you won't have sex with each other? And what happens if you violate that contract? I can't speak to all government departments, but at least the CCRA considers you married if you are living together in a "conjugal" relationship. It determines whether it is a true "conjugal" relationship (as opposed to just incidental sex) based upon the frequency of sex, and if other aspects (such as meals) are shared. In my view this is an unwarranted intrusion of the government into personal affairs.

It's also more than the government you need to convince you are not cohabiting. You need to also convince yourselves. What happens if you put on this facade of just sharing an apartment, but then you break up. She then sues you for spousal support claiming you were actually cohabiting, and in effect you are common-law married. What's your defence if you were putting on a sham?

[Riverwind]

How exactly do you agree that you are sharing an apartment but not cohabiting? Do you sign a contract that you won't have sex with each other? And what happens if you violate that contract?

The CCRA opinion of the relationship is only relevant if you want to claim individual benefits such as the GST tax credit. If you do not ask for those benefits then the CCRA does not care about your living arrangements.

The other case where common law status is relevant is during a break up _and_ one party takes the other to court. In that situation, a prior written agreement that the relationship was not a 'marriage' relationship would probably be valid provided there is evidence that all finances were kept completely independent.

[Renegade]

The CCRA opinion of the relationship is only relevant if you want to claim individual benefits such as the GST tax credit. If you do not ask for those benefits then the CCRA does not care about your living arrangements.

The CCRA cares not just that you claim individual benefits, but also whether you claim benefits normally available to married couples (such as spousal amount). This whole situation is brougth about because the government chooses to discriminate between married individuals and single individuals. Even if the goverment choose to perpetuate that discrimination, in my view it shouldn't be the CCRA's opinion that matters, it should be self-determination of status.

It is also interesting to note that the tax law makes no provision for any pre-cohabitation agreement declaring that you are not married. This may lead to a situation where family law considers you unmarried, where as the CCRA would consider you married.

The other case where common law status is relevant is during a break up _and_ one party takes the other to court. In that situation, a prior written agreement that the relationship was not a 'marriage' relationship would probably be valid provided there is evidence that all finances were kept completely independent.

A pre-cohabitation agreement which declared you are not married and don't intend to be considered married would be an interesting test in court. So far I am not aware of a test case which proves this would stand up. Meaning, if you act married, and would ordinarily be legal definition be considered married, would an agreement between yourselves override that? If you know of any precedent, I'd be interested to learn about it.

[August1991]

It does not seem to me to be reasonable to ask people to move out every year or two so that they avoid being labled as common-law. The fact that you would have to do this is exactly the point. The government has decided that it should be the custodian of the definition of who is married.

That's not entirely true.

A marriage contract implies certain mutual obligations. For example, one partner could be held liable for debts incurred by the other. Or in the event of breach of the contract, one partner could owe the other damages. These questions all have to do with civil court and the government is not ostensibly involved. Strictly speaking, when somebody co-signs a mortgage, then they have a mutual obligation and it is like being married.

OTOH, government is so pervasive in modern life that it must know our living status to determine such things as tax payments, credits, pensions and a whole variety of transfers.

I would not be surprised if we went full circle and came back to a system whereby two people must state publicly that they are married. Without that, the two would not have any mutual obligation. The current system of deemed union by the simple fact of living together is too confusing and is open to interpretation. It was created in part to accomodate gay couples but that is no longer necessary.

In the case of pension benefits, they are limited to a surviving spouse and any dependants as defined. These benefits are not transferrable so benefits could not be passed on by chain marriages.

[Riverwind]

The CCRA cares not just that you claim individual benefits, but also whether you claim benefits normally available to married couples (such as spousal amount).

If you claim any tax benefits as if you are married then you are declaring yourself to be married. If you claim benefits as if you are single but have a living arrangement that could be a marriage then the CCRA will presume you are married. We could argue the merits of the benefit programs, however, if we assume that it is legimate to target programs at certain taxpayers then it is reasonable for the CCRA to create rules that a taxpayer must follow in order to qualify for those benefits. IOW, the CCRA's definition of marriage does not have to be the same as any other gov't agency. It would be clearer if the CCRA did not refer to marriage or common law and simply said 'couples that qualify for benefits under the tax act'.

Meaning, if you act married, and would ordinarily be legal definition be considered married, would an agreement between yourselves override that? If you know of any precedent, I'd be interested to learn about it.

My understanding is actions after the agreement was signed can invalidate the agreement. For example, if you have kids together then it would be impossible to enforce a 'not-married' agreement. OTOH, someone that was meticulous about maintaining seperate finances would have a strong case. BTW, I believe that any contract can be invalidated if parties choose to violate the contract after the fact and that violation is not challenged for a long period of time.

[August1991]

Riverview, you raise good points. For the purposes of different legislation, two people might be considered married or not. For example, to sponsor a spouse under immigration law may require a different relationship than to claim a spousal deduction under tax law. The question of dependants becomes even more complex and then there are different levels of government.

Family law is such that it would take a carefully worded pre-nuptial agreement before any judge would dispense with all the normal conditions of marriage. As it is, if two divorcing people mutually agree to a settlement, a judge can still throw it out or change its conditions.

I don't think it would be possible to simplify this. Human relations are complex and the law is a result of the complexity. Tax law and family law are arguably the messiest parts of law in part because they involve lifelong contracts and our obligations to family and to society.

[Renegade]

A marriage contract implies certain mutual obligations. For example, one partner could be held liable for debts incurred by the other. Or in the event of breach of the contract, one partner could owe the other damages. These questions all have to do with civil court and the government is not ostensibly involved. Strictly speaking, when somebody co-signs a mortgage, then they have a mutual obligation and it is like being married.

It is true that the government is not involved in the enforcement, however what the courts are enforcing is a contract which the government created by defining the set of obligations in marriage.

I would not be surprised if we went full circle and came back to a system whereby two people must state publicly that they are married. Without that, the two would not have any mutual obligation. The current system of deemed union by the simple fact of living together is too confusing and is open to interpretation. It was created in part to accomodate gay couples but that is no longer necessary.

Personally, I would support such a system. I'm not sure that it was created to accomodate gay couples as until the SC ruled, gay couples were not considered common-law married no matter how long they lived together. I believe this was put in place to accomodate women, who were in long-term live-in relationships. When those relationships broke up, those women were not entitled to the same support obligations as their married counterparts.

[Renegade]

If you claim any tax benefits as if you are married then you are declaring yourself to be married.

The CCRA doesn't just accept your declaration that you are married. For example two people, who in fact are roommates, declare themselves to the CCRA to be married to gain tax benefits. The CCRA will disallow such a claim if audited on the baisis that the couple is not really married.

If you claim benefits as if you are single but have a living arrangement that could be a marriage then the CCRA will presume you are married.

The point is that it shouldn't be left to a CCRA presumption. If you deem yourself to be be single, you should be allowed that designation. It seems the CCRA (and government) has only two states an individual can be in. Single or Married. In reality the nature of relationships is that it is much graduated. I can be living with my girlfriend, and we can pool our resources, but we may not have an exclusive conjugal relationship, hence I may not consider myself "married". Why should government force this designation on me?

We could argue the merits of the benefit programs, however, if we assume that it is legimate to target programs at certain taxpayers then it is reasonable for the CCRA to create rules that a taxpayer must follow in order to qualify for those benefits. IOW, the CCRA's definition of marriage does not have to be the same as any other gov't agency.

While interesting, I wasn't looking to sidetrack the discussion on the merits of the beneift programs. What is clear is that discrimmination based upon marital status occurs. I think you have to look at why it is reasonable to target certain taxpayers on the basis of marital status. In the case of GST credit and spousal deduction, it is based upon the presumption that income and expenses are pooled. In a pooled income/expense situation, the overall GST collected by the couple will be less because expenses will be less. Similarly the spousal deduction, is to accomodate income which is shared across two. The tests should then be according to the intent. For example the test for qualification of those benefits should be if income and expenses are shared. It should be irrelevant if the couple is married or not, or even if the couple is related or not.

My understanding is actions after the agreement was signed can invalidate the agreement. For example, if you have kids together then it would be impossible to enforce a 'not-married' agreement.

Yes, you are right if your actions demonstrate invalidation then the agreement will be invalid. I don't think the example you gave would necessarily invalidate the agreement. Having kids with someone doesn't marry you to someone (in my view anyway). If you intend to live in a conjugal relationship and sign a contract to that effect that you don't want to take on the marital obligations, I don't see how having kids changes that. All having kids would do is have you assume parential obligations but not necessarily marital ones.

OTOH, someone that was meticulous about maintaining seperate finances would have a strong case. BTW, I believe that any contract can be invalidated if parties choose to violate the contract after the fact and that violation is not challenged for a long period of time.

I agree with your interpretation of how a contract can be invalidated, but to me it is not clear on what actions would invalidate a contract. You presume that to be "not married" finances need to be separate. There are couples who are married whose finances are separate, and there are couple who are not married who pool their finances for economic reasons.

[Renegade]

Riverview, you raise good points. For the purposes of different legislation, two people might be considered married or not. For example, to sponsor a spouse under immigration law may require a different relationship than to claim a spousal deduction under tax law. The question of dependants becomes even more complex and then there are different levels of government.

It would be clearer if the CCRA did not refer to marriage or common law and simply said 'couples that qualify for benefits under the tax act'.

Riverview, August, you should see from the discussion above that the whole concept of government defining marriage leads to a legal morass. The fact that two different government departments would have different views on if a a couple are married or not further underlines the absurdity.

This is the point the original poster was trying to make. If the CCRA stuck to what was required to qualify for beneifts without wading into the issue of marriage, no one would have an issue. Similarly if immigration defined the sponsorship requirements without resorting to "marriage" no one would have an issue. (Look at the whole "marriage of convienience" mess).

Family law is such that it would take a carefully worded pre-nuptial agreement before any judge would dispense with all the normal conditions of marriage. As it is, if two divorcing people mutually agree to a settlement, a judge can still throw it out or change its conditions.

You're right. The fact that someone would have to walk a legal minefield in order to not take on obligations he doesn't actually want, is in my mind, an absurd situation which government has brought upon itself.

I don't think it would be possible to simplify this. Human relations are complex and the law is a result of the complexity. Tax law and family law are arguably the messiest parts of law in part because they involve lifelong contracts and our obligations to family and to society.

Personally I think the original poster's suggestion is the best way to simplify this situation. The government should stay out of defining marriage, and people should self-declare their state. Any other situation leads to the messy situation we have today.