marriage, de facto union, conjugality, religion, neo-liberalism, civil law
This chapter deals with paradigm shifts in the legal regulation of adult intimate relationships. It includes the shifts from a unique conjugality to the multiplication of conjugalities, from marriage until death do us part to multiple subsequent unions, and from mimicking marriage by necessity to mimicking marriage by choice. Such changes open the floor for questions about the relevance of regulating adult intimate relationships today, or at the very least, about the compulsion to conceive of this kind of relationship as the cornerstone of Canadian family law. As such, it questions shifts in latent elements of the regulation of conjugality in law: from the fall of formalism to the rise of functionalism, and from religious coercion to economic sanctions.
The chapter is concerned with differences between de facto and de jure relationships. Why should the law focus on formal differences, which exist between the two, rather than on the nature of the relationship, which would lead to the law's treating them in the same way? Part one provides some background on the use of the word “appearance” in the context of de facto unions, and some explanations of the expression “sans foi ni loi”. Part two shows that differences used to be justified for religious reasons. It traces a portrait of the importance of the Catholic Church in intimate relationships in Quebec. De facto spouses were sans foi. Part three exposes that even though the religious order has dropped away, there are still big differences that many people now try to justify in a different way, namely based on arguments founded on freedom of choice, and a different set of economic sanctions is now attached. But it is not clear that these arguments make sense given the inherent complexity of “choice”. Part four suggests that people are misled by the fact that different parts of the law approach the question differently: for many purposes, the two kinds of relationship are assimilated. A misinformed choice is not one to which large consequences should be attached. Moreover, is it fair to de facto spouses that they are expected to operate on the principle of “you have to live with your choices”? State makes choices for married spouses; crucial choices. States often adjusts when married spouses’ own choices are unjust. The variable legal consequences of de facto unions in Quebec are surveyed and this last part asks whether or not this kind of union should be treated differently. Specifically, is Quebec civil law adequately dealing with the situation?
Régine Tremblay, "Sans Foi, Ni Loi. Appearances of Conjugality and Lawless Love" in Anne-Sophie Hulin, Robert Leckey & Lionel Smith, eds, Les apparences en droit civil (Cowansville: Yvon Blais, 2015) 155-191.