Choice v. equality : the legal recognition of unmarried cohabitation in Canada
University of British Columbia
Master of Laws - LLM
Over the last 40 years, unmarried cohabitation has become one of the fastest growing family forms in Canada. This growth was accompanied by an increasing social acceptance and legal recognition, which was mainly implemented by expanding marital rights and responsibilities to unmarried cohabiting individuals. However, this legal development did not happen without dispute and many scholars argued that marital regulations should not be applied to unmarried cohabiting couples. This thesis is concerned with examining the debate and trying to answer the question of whether marriage and unmarried cohabitation should be legally assimilated. It not only looks at the arguments of the literature, but also examines the reasoning of the Supreme Court of Canada in Miron v. Trudel and Nova Scotia v. Walsh. These two decisions are key because the Supreme Court moved from an equality-based approach in Miron that treats married couples and unmarried couples the same to an autonomy-based approach in Walsh that emphasizes the importance of permitting unmarried partners the freedom to choose a relationship that is not regulated by marriage laws. These cases also reflect some of the arguments in the literature and illustrate how controversial the debate is. By looking at the history of unmarried cohabitation and its sociological background, I argue that equality should prevail over liberty of choice. Often, choice is not the sole parameter in the decision between marriage and unmarried cohabitation and it cannot be said that unmarried cohabiting couples always choose to avoid marital regulations. Furthermore, unmarried cohabiting couples are functionally similar to married couples and should therefore be treated equally from a legal perspective.
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