Couple Who Married in Private Ceremony Were Not Spouses for Purposes of Property Division
A court recently found that a Newfoundland couple who had exchanged vows and rings in a private ceremony in their home was not married. After a bitter end to their relationship, the woman felt that she was entitled to a division of property, and filed for it, but the court ultimately disagreed, finding that the couple were not spouses, and therefore the property division provisions of the Family Law Act did not apply.
After living together for several years, the parties, Linda Dwyer and George Bussey, decided to make their relationship more serious, and participated in what they believed was a wedding ceremony in July 2008.
The couple, who had both previously been married, and were both widowed, exchanged rings that had been blessed by a pastor, opened a bible, and read out the verse “what God has joined together, let no man put asunder”. The ceremony took place with the two of them, alone in their home, and had no officiant, witnesses, or marriage license.
After five years, Bussey ended the relationship, abruptly. Police had to be called. Following the breakdown of the relationship, Dwyer, who claims that she invested a lot of money into shared property and vehicles, filed an application for division of property.
The Position of the Parties
Dwyer agreed that she and Bussey had never attained the status of a legally married couple, but argued that provincial law did not require a couple to be legally married in order to be considered spouses for the purposes of division of property. If the law was interpreted broadly, as long as the couple had entered into a “form of marriage” or “putative marriage”, they could be considered spouses for the purpose of dividing assets.
As evidence of the couple’s intention to marry, Dwyer presented the court with cards she had received over the years, ranging from cards congratulating the couple on their wedding to Valentine’s Day cards and others that Bussey had given Dwyer which referred to her as his “wife”. She argued that Bussey promised her that they would grow old together and that she was his wife in the eyes of God. Shortly after their wedding ceremony, the couple had visited Bussey’s mother’s home to tell his family about the wedding. They also went to a restaurant for dinner, where they told the waitress they had just gotten married.
Bussey argued that he never intended to be in a legal marriage with Dwyer and that their relationship was strictly common-law.
The Original Decision
The original judge who heard Dwyer’s application for property division noted:
In some sense, Mr. Bussey and Ms. Dwyer may have intended to create a traditional marriage. They were living together in a conjugal relationship. Their ceremony deliberately echoed the formalities of a Christian wedding. Over the next few years they called each other husband and wife and introduced themselves as husband and wife to friends, family, and the congregation at their church. They received and preserved cards congratulating them on their wedding. But Mr. Bussey and Ms. Dwyer did not intend to create a legal marriage. They had both been married before, characterized themselves as widows on tax forms, and knew they were not complying with marriage law.
The application judge ultimately concluded that the couple’s relationship did not entitle them to benefit from property division under the province’s Family Law Act (the Act).
The Court of Appeal considered the definition of “spouses” under the Act, which states:
“spouse” means either of 2 persons who
(i) are married to each other,
(ii) are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or
(iii) have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year,
and, for the purposes of an application under this Act, includes a widow or widower.
The court noted that a couple could only be spouses if:
- They are married, in which case they fall under either subparagraphs (i) or (ii) depending on whether their marriage is voidable, or
- They “have gone through a form of marriage with each other, in good faith, that is void”
Was There a Marriage?
Based on this legal test, the court first had to determine whether there had been a marriage in this case. To make this determination, the court relied on s. 44 of the Solemnization of Marriage Act, which stated:
Where the parties to a marriage solemnized in good faith and intended to be in compliance with this Act were not under a legal disqualification to contract the marriage and after that solemnization have lived together and cohabited as husband and wife, the marriage shall be considered to have been validly solemnized, notwithstanding that the person who solemnized the marriage was not authorized to solemnize marriage and notwithstanding an irregularity or insufficiency in the issue of the licence.
The court determined that the couple’s ceremony did not fit within this definition. It had not been a situation where the officiant was “not authorized to solemnize marriages”. Rather, there had been no such person present at their wedding ceremony.
Similarly, there had not been any “irregularity or insufficiency in the issue of the license” as there had been no license at all. In addition, the couple did not “[intend] to be in compliance with [the Act]”.
The court concluded there was no marriage based on the above definition.
Had there Been Good Faith?
The court went on to note that if the couple was not married, they could only be considered spouses under the Act if 1) the ceremony between them was a “form of marriage”, and 2) they went through the ceremony in good faith.
The court noted that it was satisfied to assume that the couple’s ceremony had been a form of marriage. The issue, therefore, was whether they had gone through the ceremony in good faith. To determine this, the court analyzed several things, including the scheme of the Act and the public policy behind it.
With respect to the scheme of the Act, the court noted that the Act is organized around a clear distinction between “spouses” and “partners”. Partners are persons “who have cohabited in a conjugal relationship outside of marriage”. Spouses are married.
Parts I and II of the Act, which deal with property division and sharing of the matrimonial home apply only to “spouses”. Part II, which deals with spousal support applies equally to spouses and partners. The logic behind this two-track system has been previously addressed by the Supreme Court when it explained a different piece of legislation governing marriage, the Matrimonial Property Act:
48 … The decision to marry, which necessarily requires the consent of each spouse, encapsulates within it the spouses’ consent to be bound by the proprietary regime that the MPA creates.
49 Unmarried cohabitants, on the other hand, maintain their respective proprietary rights and interests throughout the duration of their relationship and at its end. … The general principle is that, without taking some unequivocal consensual action, these cohabiting persons maintain the right to deal with any and all of their property as they see fit.
50 The MPA, then, can be viewed as creating a shared property regime that is tailored to persons who have taken a mutual positive step to invoke it. Conversely, it excludes from its ambit those persons who have not taken such a step. This requirement of consensus … enhances rather than diminishes respect for the autonomy and self-determination of unmarried cohabitants and their ability to live in relationships of their own design…
The court noted that this logic is controversial, but that it cannot second-guess it. The court went on to say that:
If, as here, a couple deliberately avoids the legal consequences of marriage, it is difficult to conclude that they have taken a mutual positive step to bring themselves within the matrimonial property regime.
With respect to the public policy behind the Act, the court went on to say that the matrimonial property provisions are intended to protect and recognize the equal contributions of partners, particularly those who are economically dependant. The court also noted that not everyone wants to get married, and that:
… couples who deliberately choose to avoid the legal consequences of marriage may have good reasons for doing so. Couples differ in age and stage of life; in commitment; in values; in interdependence; in division of domestic and economic labour; in wealth and earning power; in obligations to dependents, family and others; in aspirations for career or children. The Act is not suitable to every couple’s circumstances. One size does not fit all.
The court noted that the justice system must have “respect for couples’ autonomy” and “deference to couples’ choices about how to arrange their own affairs”. Indeed, couples can express their choices through marriage or a cohabitation, but as long as the law makes a distinction between the rights of married and unmarried partners, couples can also indicate their choice of property regime by either marrying or deciding not to do so.
A Need for Certainty
The court went on to say that interpreting “good faith” as an intention to be legally married ensures certainty. Only couples who honestly believe that they are legally married can be considered spouses under the Act. Any other definition would create an “ambiguous intermediate class of people who are not legally married and do not believe themselves to be legally married, but may nevertheless be spouses under the Act.”
The court recognized that cohabiting couples often hope or plan to live together exclusively for life. However, it would be hard for a court to piece together all the various promises such a couple made to one another to figure out whether their commitment to each other “passed some threshold of firmness”. In such a situation, any uncertainty about the couple’s intentions would take the form of “needless acrimonious legislation”. In contrast, a legal marriage and all of its inherent formalities provide a court with very clear evidence of a married couple’s intentions.
The court went on to conclude that the scheme of the Act, respect for the autonomy of couples, and a need for certainty all imply that a couple can only enter a form of marriage “in good faith” if they intended to become legally married.
The court, therefore, dismissed the appeal and concluded that:
Mr. Bussey and Ms. Dwyer are not married and, because they deliberately chose not to enter into a legal marriage, they did not enter into a form of marriage “in good faith”. They are not spouses.
Dwyer’s lawyer told the National Post that Dwyer is considering a further appeal to the Supreme Court of Canada, noting that:
The modern world in which we’re living today a lot of people are not getting married, but they’re living together … creating property rights, having children,” he said. “So the courts should have a more small-l liberal interpretation of what gives these people rights in these cases.
We will continue to follow developments in this case and will provide updates as they become available. In the meantime, if you have questions about separation, divorce, or property division, contact Jason P. Howie at 519-973-1500 or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.