Canadian Lawyer

October 2019

The most widely read magazine for Canadian lawyers

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Page 45 of 55

FAMILY LAW LEGAL REPORT 46 A HALF-DECADE and more ago, family formation took a traditional pattern: A couple legally married, had children and the wife typically stayed home to care for home, husband and offspring, sometimes sacrificing a career she may have had prior to marriage, and the marriage would last decades. Today, legal marriage is less common and divorce rates are much higher, couples often remain childless and a woman may continue a career in which she may earn more than her spouse, whether legal or common law. Yet when people legally marry, they can trust that assets accumulated during their marriage will be divided equally if the marriage dissolves. That's not the case for common law couples in most of Canada; however, even where it is not legislated, courts may be increasingly recognizing that property rights apply to cohabitants. But will the legislation follow suit? Property division on dissolution of common law marriage has "been an issue for decades," says Robert Leckey, dean of the Faculty of Law at McGill University. A small handful of provinces — British Columbia, Saskatchewan Courts are increasingly recognizing property rights for common law couples, but legislation has yet to catch up and Manitoba, along with Nunavut and the Northwest Territories — have changed their legislation to treat common law couples the same as legally married couples on dissolution of the relationship. "Where that hasn't been done, courts are adapting the common law rules they work with," says Leckey. "Sometimes, we have the idea that if the legislature doesn't act, the law stays static. That's not happening." In the jurisdictions where the law has not been reformed by legislators, "the courts have been gradually changing, with a view to Differentiating common law from marriage

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