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Issues for Divorce Laws in Canada

Info: 2542 words (10 pages) Essay
Published: 7th Aug 2019

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Jurisdiction / Tag(s): Canadian Law

Civil Union, Common-Law Union, and Marriage: Consequences Facing Divorce

Love relationship can be unified in three ways, either by the union of marriage, by the common-law union or by the civil union. All three unions deal with divorce in a different manner, either it is with the childcare or the material goods; the different unions imply different rights and laws. It is important to be aware of those differences regarding the law and each individual’s rights when unifying a love relationship, if not children may suffer from this decision later and one of the two individuals may be found disadvantaged. Following with the same line of idea, this essay will focus on love relationship between two individuals, which can be unify either by the union of marriage, the common-law union or by the civil union, although these have different impact when facing divorce. Using the case of Eric vs Lola from 2013, some major differences regarding the civil union and the union of marriage arises; as well as for the divorce, the issues regarding the parents’ status, and the implications that such an event requires for the family as a whole.

According to civil unions, common-law unions, and marriage in Quebec, vigorous comparisons and contrasts arises regarding the different rights in divorce or separation. To begin with, when two individuals are married and then get divorced, the patrimony laws are the ones being used to process the divorce between the two individuals. The patrimony laws are involved when a married couple divorce; the cumulated value of the family property is divided in equal manners between the two spouses.[1] The family patrimony will include the family’s homes such as the house, the cottage of the family and boats; the furnishing and decorating objects within the family’s homes such as furniture, appliances, electronics and artworks; the family’s motor vehicles such as car, moto or SUV; and money saved in any retirement plan during the years of marriage such as RRSP and pension fund.[2] Secondly, when two individuals are part of a common-law union, they are not “regulated by the Civil Code”, therefore the two individuals are not protected under the law when facing divorce, whether or not they have been living together for many years.[3] Although, it is “70% of women between the age of 30 and 39 who will choose common-law union for their first union”, these women make this choice since it is a reliable alternative to the union of marriage. [4] Thus, when two individuals from a common-law union encounter divorce, they do not receive any protection from the law, something married couple would receive.[5] For instance, the individuals in a common-law relationship will not reap benefits from the protection of the family’s house, there will be no right to the division of property, there will be no compensatory allowance or support payments from one of the two individuals.[6] The only way common-law could protect themselves without help from the law is with a contract; in order to establish agreements toward various aspects of a relationship and of the family, this can be a protection to an eventual separation.[7] Furthermore, the Quebec’s National Assembly newly adopted a law attributing recognition to civil unions between partners. There is no divorce in a civil union, although there are various ways to end this union. Frits, if the couple does not want to be together and live together anymore, a marriage can also be the reason ending a marriage, and the civil union dies if one of the two individuals dies. If facing divorce, the two individuals from a civil union are protected under the Civil Code and are also protected by the patrimony laws, such as married spouses would be. [8] Although, the civil unions can only be recognized in Quebec.[9] All and all, the three possible unions face differently divorce or separation toward the laws and the rights of each individuals regarding their chosen union.

Using the case of Eric V Lola; both the common-law union and the union of marriage imply different laws and rights when facing divorce, the status of both parents in the society and the union chosen by both partners can have a huge impact and further repercussions in their lifes. Eric and Lola were two fictional names given in order to protect the identity of the two-person involved in that case. Eric and Lola had never been married since Eric did not want to; they were engaged as a common-law couple but they separated in 2002 after seven years of relationship and two children. The debate in this case was to know if common-law couples in Quebec were entitled to “ask for support payments from an ex-partner and for division of property” if the union was to end.[10] Thus, it is only in when married that the two persons have an equal distribution of the assets. Therefore, the Supreme Court also judged aside that the Civil Code of Quebec was discriminatory toward common-law partners since they were not allowed the same rights as married couples; such as the family patrimony.[11] As for the case of Lola and Eric, the same pattern as for married unions does not apply since they are in a common-law union; thus, one does not ow any support payments to the other or an equal division of the family property.[12] The only way the separation of Eric and Lola could have been treated like a marriage union was if they had agreed on certain issues and aspects in a contract when they were both in a common-law union, or by the time they were separating. [13] Moreover, Eric was the only one in the union who made a salary, therefore he was the financial support of Lola and their two children; when they separated, Lola was found with nothing since he was the financial support in the family and he did not have any financial obligation toward her since they were in a common-law union. [14] Furthermore, since Lola and Eric do not have the same financial assets, Lola could not offer the same lifestyle to their children as she used to when she was with Eric, therefore the children would face to extremely different financial situation; their father with a lot of money, while on the other hand their mother with not as much.[15] In this situation, Lola can no longer offer to her children what she used to, only their father, Eric can. All and all, analysing the case of Eric and Lola, there is a strong distinction to make between the common-law union and the marriage when facing divorce. The financial status of Lola in society is highly different from Eric’s which can have an impact on the children.

Whether it is a divorce or a separation from the civil union, the common-law union or from the union of marriage, they all imply different things and aspects; people need to be more informed about the different possible unions to unify a relationship in order to make the best decision for them and their children. Even if this union is between two individuals, children from this union are as much involved and need to be taken into consideration. To begin with, since there are three possible union to unify a love relationship in Quebec, it is important to choose the one that fit most each couple’s lifestyle and desire regarding the relationship, since they all include different advantages and disadvantages. [16] Thus, when there are children involved it is even more important to make a choice which includes them as well since they should not suffer from a divorce or a separation.  When a divorce or a separation occurs, the children may be exposed to a different education and a different lifestyle from both parents, which is not suggested as for the development of children.[17] The family itself is something very important for a child, “family was the source of nurture and early training for children”, therefore it should not be put aside when parents separate.[18] Children need both of their parent to have a full education, both parents bring different values which form their children’s education.[19] Of course parenting will be different since both parent no longer team up to do their parenting job together, but it should not directly affect the children, they should not feel a huge distinction between the education and lifestyle they had before.[20]  Moreover, if the salary of the two individual is highly different, the impact on children could be even bigger. If the parents were not married and yet had two very different salary and were to end their civil union, the children from this union would suffer from this high financial distinction from their two parents; one parent who makes a lot of money and one who does not, since the assets between the two individuals would not be spilt equally since they were not married.

All and all, there is an union for every type of love relationship, although it is an important decision to make and not to underestimate; the choice of union will then have an impact on the partners’ life and their children’s if ever a separation or divorce would occur., such as seen with the case of Eric and Lola.

Works Cited

[1] Elisabeth, Kalbfuss, “Unmarried … with Children: Quebec Tops in Common-Law Unions: StatsCan,” The Gazette. A1 / FRONT (July 2002): 1-3, ProQuest Research Library (433839234).

[2] “Property included in the “Family Patrimony”,” Educaloi, 2018, https://www.educaloi.qc.ca/en/capsules/property-included-family-patrimony.

[3] “Unmarried … with Children: Quebec Tops in Common-Law Unions: StatsCan,” 3.

[4] “Unmarried … with Children: Quebec Tops in Common-Law Unions: StatsCan”, 1.

[5] “Unmarried … with Children: Quebec Tops in Common-Law Unions: StatsCan,” 3.

[6] “Property included in the “Family Patrimony”

[7]“Property included in the “Family Patrimony”

[8] “Unmarried … with Children: Quebec Tops in Common-Law Unions: StatsCan,” 3.

[9] “Unmarried … with Children: Quebec Tops in Common-Law Unions: StatsCan,” 3.

[10] “Common-Law Couples: Making a Life Together Without Being Married,” Educaloi, 2018, https://www.educaloi.qc.ca/en/capsules/common-law-couples-making-life-together-without-being-married.

[11] Guillaume Bourgault-Côté, “Conjoints de fait : Québec fera ses devoirs,” Le Devoir (2013), https://www.ledevoir.com/societe/justice/369372/conjoints-de-fait-quebec-fera-ses-devoirs.

[12] ERIC v. LOLA (1 RCS 61) (2013), Supreme Court of Canada 2013, 62.

[13] “Property included in the “Family Patrimony”

[14] ERIC v. LOLA, 62.

[15] ERIC v. LOLA, 63.

[16] “Unmarried … with Children: Quebec Tops in Common-Law Unions: StatsCan,” 3.

[17] Edward Kruk, Equal Parenting Presumption: Social Justice in the Legal Determination of Parenting after Divorce (Montreal: McGill-Queen’s University Press, 2013), 16-28, Ebook Central, 19.

[18] James G. Snell, Shadow of the Law: Divorce in Canada 1900-1939. Toronto: University of Toronto Press, 1991. Ebook Central, 22.

[19] Shadow of the Law: Divorce in Canada 1900-1939, 31.

[20] Equal Parenting Presumption: Social Justice in the Legal Determination of Parenting after Divorce, 22.

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