Is it unconstitutional to deny common-law spouses the right to an equal division of property?
By: Steven Benmor, B.Sc., LL.B., Family Lawyer
Jurisdiction: Ontario (Canada)
In the landmark decision of Nova Scotia (Attorney General) v. Walsh 2002 S.C.R. 83, the Supreme Court of Canada has ruled that excluding unmarried spouses from provincial matrimonial property laws is not discriminatory.
Susan Walsh and Wayne Bona cohabited for 10 years until 1995. Two children were born out of this relationship. Ms. Walsh applied for spousal support and child support. She also sought a declaration that the definition of “spouse” in Nova Scotia’s Matrimonial Property Act was unconstitutional because it failed to provide her with the right to an equal division of matrimonial property – a right that is available to married spouses.
In an 8-1 decision, the Supreme Court of Canada ruled that excluding unmarried spouses from provincial matrimonial property laws is not discriminatory because the distinction reflects the differences between married and unmarried relationships and respects the fundamental personal autonomy and dignity of the individual. The highest court stated that the decision to marry, or not to marry, is personal and that many common-law couples have chosen to avoid marriage and its legal consequences. They are free to marry each other or take other steps if they want to enjoy the benefits available to married couples.
As an aside, this ruling is moot for Ms. Walsh and Mr. Bona. Before the appeal was concluded, Ms. Walsh and Mr. Bona settled their dispute and agreed to a 50-50 property split. In addition, Nova Scotia amended its laws in June 2001 to allow common-law spouses, including same-sex couples, to register their relationships as domestic partnerships, thereby entitling them to many of the same rights and obligations as married couples, including division of assets upon separation or death.
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About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at www.benmor.com. The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available. |
