Many years ago, my partner and I went to a weekend gathering at a rural community of political activists whose work was deeply rooted in their Christian beliefs.
When we arrived, we were assigned sleeping quarters for the weekend. Much to my surprise, I found myself, along with my teenaged daughter, sent off to the women’s sleeping area, while my partner was sent to the men’s. When I inquired why we were not put in the “married” quarters, I was shown the registration form I had completed, in which I had not ticked a box saying that my partner and I were married (because we weren’t). As a result, I spent the weekend sleeping in a dorm room with mostly teenaged girls.
I enjoyed my few nights of sneaking illicit goodnight kisses with my partner, my daughter and I had fun whispering after lights out, and we all had a good laugh about it as we drove home at the end of the gathering. But, I’ve never forgotten how strange it felt to not have my relationship accepted as legitimate.
Are you or aren’t you?
Few of us are asked about the formal arrangements of our personal relationship with someone who seems to be our partner. Assumptions are often made, especially about people who look like they are heterosexual, that they are married to the person they are with. Sometimes I challenge these assumptions, wanting people to understand why some of us choose not to marry; sometimes I let them go by. But, generally, my unmarried status has not presented any problems for me since this experience some decades ago.
Earlier this week, however, it came up when we went to pick up a car I had rented, which we both planned to drive. When we produced our driver’s licences, the agent asked if we were married. I asked why she wanted to know, and was told that, if we were married, my partner could be a second driver without an additional fee. I said we were in a common-law relationship; she said this didn’t meet their requirement. I pushed back, saying that we had been together for 40 years, but she didn’t budge.
I suggested that she could ask me the question again and I could answer it differently – after all, it wasn’t as though she required me to provide proof of our marriage — and so it went for a few more exchanges. In the end, although I have no moral objection to lying if it harms no one, I opted to stick with the truth; mostly, because I have a pathological terror of insurance companies and their ability to ferret out a lie no matter how minor. Imagine, I thought, if we were in some kind of accident while my partner was driving, and the fact that we lived in sin – albeit for almost half a century – were to emerge?
My lack of appropriate marital status coupled with my decision to tell the truth cost me $12.50 in order for my partner to be able to drive the car.
No big deal, you say, but I think it is.
Ongoing inequality
Why on earth do car rental companies do this? It makes no practical sense to offer something to people who have been, potentially, married for two days that is denied to people who have lived together for many decades. Marital status is a protected ground under both Ontario’s and Canada’s human rights codes, so it’s discrimination and, while it may not seem serious enough to mount a legal challenge about it, it’s tempting just on principle.
This ongoing and unnecessary discrimination arises in situations that are far more serious than my car rental experience. Ontario family laws, for instance, distinguish between married and common-law relationships in a number of ways, some of which have a particularly negative impact on women with abusive partners.
When married people end their relationship, the default arrangement for dividing up their property, including the home(s) where they have lived together, is that the value of everything gets shared equally. No such arrangement exists for people in common-law relationships: in those situations, the starting position is that each person leaves with what they brought into the relationship and anything they can prove they paid for. This can place a woman whose partner is financially abusive at a distinct disadvantage.
In both situations, people can enter into a domestic contract – either a cohabitation agreement or a marriage contract — to set out how they want to deal with their property should their relationship end. However, this costs money and, more important, is something few people want to consider when they are in the throes of early-love bliss.
Of particular concern in relationships where the woman has been subjected to abuse by her partner is the issue of who can stay in the family home. When people are married, regardless of whose name is on the deed or mortgage, either spouse can apply to the court for exclusive possession of the home. If that spouse is successful, the order prohibits the other spouse from coming onto the property or into the house.
Where there has been abuse, this can be very helpful for a woman who wants to remain in the home: perhaps she wants to maintain some stability for the children or perhaps she has no other housing options. With this order, she can change the locks and, if the abuser appears on the property, she can call the police to have him arrested and charged, regardless of whether or not her name is on the deed or lease.
A woman in a common-law relationship can only make such an application if her name is on the deed or lease and, as we have learned over the years, it’s not uncommon for abusive men to insist that only their name appear on such documents. We have assisted women who have had the police arrive at the home they have lived in – sometimes for many years—with their common-law partner and remove them from it within hours of responding to her 911 call, removing the abusive partner and charged him criminally.
Where people make a fully informed choice to bypass the protections and responsibilities of being married – which is the case for my partner and me – we should be free to do so. We can enter into a domestic contract with one another to set out the terms of our relationship, if we choose to do so. And then we accept the consequences – good and bad—of our choices.
But that’s not the reality for many women, whose course in life is not a matter of fully informed, free choice but rather one of picking the least bad of a limited array of options, with little information about what the implications of that so-called choice are.
The ongoing legal differences for people in married and common-law relationships – be that in the context of renting a car or trying to stay safe from an abuser’s ongoing mistreatment – does not provide equal treatment before and under the law. That’s not right, and it’s time for it to end.