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Can You Get the Benefits of Divorce Without Being Married?

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If you’re a normal American adult, it’s highly likely that you know at least one couple who are unmarried and live together, routinely intermingle their finances, and maybe even have children. And chances are you don’t think that this is anything unusual.

For most purposes, these couples can enjoy the legal benefits of marriage, even if they have to jump through a few hoops that a married couple would not have to (setting up power of attorney to make medical decisions for one another, for example).

However, one thing that unmarried couples in the United States generally cannot do is get divorced – where their relationship is legally dissolved, and the assets acquired during the marriage are distributed between the former spouses in the most fair and equitable way possible.

This is also generally true in most other Western countries, such as Canada, for example. But things might be changing in our neighbor to the North, and perhaps in the United States, as well. At first blush, ending a long-term, cohabitating, but unmarried, relationship seems like a relatively simple matter: the couple breaks up, and one of them moves out. There are no messy court proceedings, and the former lovebirds have to agree amongst themselves about how their stuff is divided up. If the couple had children, the only legal dispute that’s likely to come up is about child support.

However, the former girlfriend of a Canadian billionaire, with whom she was in a relationship for about 10 years, got an order from a court in Quebec requiring her former partner to pay her spousal support, on top of the child support he already pays. Her argument is essentially that their relationship was identical to marriage in all but name, and that treating it otherwise amounts to discrimination against unmarried couples.

Now the government of Quebec is appealing that decision to the Supreme Court of Canada, arguing that it interferes with the rights of individuals to enter into the marital/domestic arrangements of their choice.

So, what does this have to do with the United States? Well, whatever a court in Canada rules, it will obviously have no direct bearing on couples in any other country.

However, in some U.S. states, there are already legal arrangements which are strikingly similar to the one that the plaintiff in this case seeks to establish. Most notable are so-called “common law marriage” and “palimony.”

Common law marriage is only recognized in a minority of U.S. states, because it can create problems that will be discussed shortly. In the states that do recognize it, a common law marriage is essentially a marriage created by operation of law, based on the couple’s circumstances, rather than the couple actively entering into a marriage. While the exact requirements vary between states, in order for a common law marriage to be established, the couple needs to have lived together for a certain period of time (usually several years), and behaved in all ways as a married couple during that period, by commingling their finances, holding themselves out as husband and wife, and having and raising children together.

When the relationship ends, or one of the partners passes away, the legal consequences can be the same as if the partners were married. For example, if a common-law marriage ends, one partner may seek spousal support (alimony) from the other partner. Of course, a prerequisite for this is that they were married in the first place, which requires them to go to court and show that their relationship had all of the required characteristics of a common-law marriage.

Likewise, if one of the partners dies, and did not leave a will, their assets will usually first go to their spouse, if they have one. This can lead to disputes between the decedent’s living partner, and the decedent’s other relatives, over who should inherit his or her property. In that case, a court would also have to determine whether or not a common-law marriage existed between them.

Basically, this question rarely comes up during the relationship, so courts are forced to resolve the issue after the fact, which can be very expensive and time-consuming for everybody involved.

For that reason, many states have done away with common law marriage, meaning that they will only recognize a marriage that follows all the ordinary formalities (obtaining a marriage certificate, having an officiated ceremony with witnesses, etc.) in order for their relationship to ever be classified as a legal marriage.

With that in mind, it actually makes a lot of sense that the government of Quebec would want to prevent a similar situation from arising: common-law marriage seems like it’s a lot more trouble than it’s worth, which is why the trend is to abolish it in the United States.

On top of that, they’re probably also right that it could interfere with one’s right to enter into their preferred type of marital relationship. The knowledge that they might end up on the hook financially for all the obligations of marriage, even if they never thought they were married, could deter people from entering into long-term relationships.

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  • Bruce Alan

    I have heard that states that have legalized homosexual marriage are doing away with the registration of domestic partners, hetero and homosexual, for purpses such as health insurance coverage. The reason a s I understand it is that domestic partnership was created to accomodate gays who could not get married and that since there is no limitation anymore there is no need. Is this accurate?

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