The do-it-yourself marriage that wasn’t

The National Post reports on an unusual case from my home province, in which a couple exchanged rings and started calling themselves husband and wife, but never officially got married.  When the relationship ended, Linda Dwyer argued that she was entitled to equal division of her ex-partner’s property, but a judge disagreed.

That ruling has now been upheld by the Newfoundland and Labrador Court of Appeal:

They took turns saying vows and exchanged rings. But there was no officiant; nor were there any witnesses. And they didn’t bother getting a formal marriage licence. Still, they held themselves out to family, friends and fellow church members as “husband” and “wife” for years.

When Bussey abruptly broke off the relationship in 2014, Dwyer felt she was entitled to a “division of matrimonial property,” like any other spouse. But Bussey disagreed, setting the stage for an acrimonious and novel legal battle over what constitutes “marriage.”

In a 2-1 decision late last month, a provincial appeal court upheld a lower court decision that said the retired couple — Dwyer is 65 and Bussey is 74 — did not meet the definition of a married couple or qualify as spouses.

“I was his wife to his family, friends and neighbourhood, and as far as I can see, I should have been recognized as his spouse,” Dwyer told the National Post.

[…]

…Newfoundland and Labrador Supreme Court Judge Jane Fitzpatrick sided with Bussey. In a June 2015 decision, she wrote: “Holding ceremonies yourself without a marriage licence, an officiant or witnesses and exchanging rings can only be recognized in this province as a common law union.”

Moving to a broader interpretation would only invite a “myriad of uncertainties,” the judge added, citing language used in an Ontario court case.

Dwyer appealed the decision.

In late November, an appeal court panel upheld the earlier decision in a 2-1 ruling. Creating an “ambiguous” intermediate class of people who are not legally married but still qualify as spouses would create too much uncertainty and lead to “needless, acrimonious litigation,” Judge Charles White wrote for the majority.

“The formalities of a legal marriage ensure clear evidence of the parties’ intentions.”

The full decision is here.  There was a dissenting opinion in the case, so an appeal to the Supreme Court of Canada remains a possibility.

For now, though, the law continues to draw a distinction between formal marriages and common-law relationships, at least where division of property is concerned.

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