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The Fishman Beley Family Law Primer - Family Law 101
Marriage and Common-Law/Same Sex Relationships
MARRIAGE
Marriage, previously defined as the “union of one man and one woman for life,” has been around for ages, but in the last couple of decades has taken on new meaning and legal consequences. It has become more inclusive. What was once a matter for the religious establishment, over time, evolved into a secular matter that came to be governed by the secular law and enforced by the courts.
The law of Manitoba provides who can marry, how old the intended spouses must be and how they cannot be related to each other by blood. The law of consanguinity prohibits a brother and sister marriage or the marriage of other close blood relatives. The intended must be over the age of 18, subject to rare exception.
A major sea change took place over the last decade when the law came to accept and attempt to regulate common-law relationships, which includes same sex relationships.
While there are laws about the solemnization of marriage, who can get married and who can marry whom, the formalities of same sex or common-law relationships is much less organized. It became legal in Canada in 2005.
COMMON-LAW RELATIONSHIPS
To establish a common-law relationship, such that the family law will be applied on its dissolution, two persons need only live together for three years. Upon that milestone being achieved in Manitoba, the legal remedies available to married persons on their separation or divorce will apply to the couple. Other provinces have separate rules.
Also, in Manitoba, for those who have lived together for at least a year and have a child of their relationship, the remedies of custody and support will apply, but no equalization of property is governed by the law until they make the three-year mark.
The alternative to waiting is to register the relationship with Vital Statistics, something which is rarely done. There is a modest cost. There are no laws defining who can enter a common-law relationship or how many such relationships a person can be in at one time. There are no stated age minimums.
Married people can only be married to one other person at a time, but there’s nothing stopping them from living common-law with others at the same time, or from being in more than one common-law relationship at a time. To be fair, there are very few cases of bigamy on the criminal law charts, but the laws are still on the books. Bigamy will invalidate a marriage and leave a complicated trail of issues to be resolved.
When the relationship is over, or about to be over, the law can be used for many purposes: to provide safety to the party that wants out, by providing urgent relief and protection from abusive partners, to give one party occupancy and control of the house, to determine where the children will live and how they will be supported, to allocate the use of family property, to equalize the value of the family’s assets and debts, and to provide financial support for the dependent partner or spouse. Each of these remedies is available in the appropriate circumstances although not always as seamlessly easy as others.
Most separations, while not necessarily amicable are relatively peaceful, but if there is a situation involving domestic violence, real or threatened, special emergency remedies can be availed.