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Does BC’s Common-Law Marriage Law Violate Canadian Charter Rights?

Can the government tell you that you are married, or is it an individual choice?

Canadian issues editorial by Justin Munce

Two years ago, B.C. law changed: Now, couples who live together for two years are legally “married” in every sense. They are not called “married” by the government, but they have the same rights and responsibilities as married couples, including the division of assets.

If a couple has lived together for two years, whether or not they intended to marry, the government imposes a 50/50 split of shared debts and assets (excluding pre-relationship property, inheritances and gifts).

Before the change, if people who had lived together separated, they were not entitled to a split of assets.

The day the act was passed in March, 2013, the government effectively forced a legally binding marriage union on hundreds of thousands of British Columbians.

Although they had not agreed to the legal contract, they were immediately subject to its terms. Also, they were not asked by the government if they wanted to enter into a “marriage” with the person they were living with.

Does this violate Canadian Charter rights?

Yes, I believe that it does.

Section 7 of the Charter protects each Canadian’s right to individual autonomy and personal legal rights from actions of the government.

The section breaks down into three types of protection: the right to life, liberty and security of person.

I believe the B.C. Family Law Act violates Canadians’ right to liberty.

Liberty means Canadians’ freedom to act. It has been interpreted to include the power to make important personal choices.

Marriage (or entering into a legally binding relationship akin to marriage) is an important personal choice. Therefore the government cannot compel it without infringing Canadians’ Section 7 right.

Legal scholars suspect that Section 7 is an “individual right,” and may not be a “family right” (i.e. it protects individuals against the government but not family members from each other). This is not consequential to the issue at hand because the two individuals are not family. It is the state that forces the “marriage” upon individuals who are not family, who may then be bound by family law.

Does the B.C. Family Law Act violate the UN Declaration of Human Rights?

Yes, I believe that it does.

Marriage by any name is a legally binding union with rights and responsibilities, as understood by the government. Even if the Canadian government does not call the union legislated in the Family Law Act “marriage” it is the same as what it calls “marriage.”

The UN’s fundamental human rights Article 3 protects life, liberty and security of person (similar to the Canadian Charter’s section 7).

The UN Declaration also includes an article specifically treating marriage: Article 16.

The second point of Article 16 is: “Marriage shall be entered into only with the free and full consent of the intending spouses.”

In forcing a Marriage or bond treated as marriage upon Canadians, the government infringes Canadians’ human rights under the UN Declaration, which Canada helped draft and signed in 1947/1948.

What is your opinion?

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