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For jurisdictions that provide that a couple become spouses after living together in a marriage-like relationship for a given period of time1, how is such a marriage-like relationship different than living as mere roommates?


1. For example, in British Columbia, a person is a spouse for the purposes of the Family Law Act if they have "lived with another person in a marriage-like relationship" for a period of two years. But that is just an example, and this question is open to answers from jurisdictions with analogous paths to spousal status, even if they use different terminology.

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5 Answers 5

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Courts have generally recognized that there is no "checklist." Courts will look at a multitude of indicators "of the sorts of behaviour that society, at any given point in time, associates with a marital relationship" (Weber v. Leclerc, 2015 BCCA 492).

[The indicators] include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.

(M. v. H., [1999] 2 S.C.R. 3 at para. 59.)

Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property - in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important - for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together - others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children - others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

(Yakiwchuk v. Oaks, 2003 SKQB 124).

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There has been quite a journey, since this form has been used to try to enable unmarried same-sex couples to get the same rights as married heterosexual ones.

However, same sex marriage is legal for a while now. So the courts have focused in their definition of "marriage like relationship" on the status and privileges (and duties) that married couples have under the law and tried to grant similar rights (and especially duties) to those not formally married. You might cynically say that the state is mainly interested in making money, so there are a lot of duties, but not a lot of privileges gained from being a non-married couple.

So without all the history, let's jump straight to 2006, the last time this was changed/clarified. Keep in mind this court decided on duties, not privileges, of non-married couples:

Eine solche Einstehensgemeinschaft liegt nach § 7 Abs. 3 und 3a SGB II vor, wenn

eine Person mit dem erwerbsfähigen Hilfebedürftigen in einem gemeinsamen Haushalt so zusammenlebt, dass nach verständiger Würdigung der wechselseitige Wille anzunehmen ist, Verantwortung füreinander zu tragen und füreinander einzustehen.

Ein wechselseitiger Wille, Verantwortung füreinander zu tragen und füreinander einzustehen, wird vermutet, wenn Partner

  • länger als ein Jahr zusammenleben,
  • mit einem gemeinsamen Kind zusammenleben,
  • Kinder oder Angehörige im Haushalt versorgen oder
  • befugt sind, über Einkommen oder Vermögen des anderen zu verfügen.

Translated:

According to § 7 (3) and (3a) SGB II, such a "community of responsibility" exists if

a person lives in a common household with the person in need of assistance who is capable of working in such a way that, according to a reasonable assessment, the mutual will to bear responsibility for each other and to answer for each other can be assumed.

A mutual will to bear responsibility for each other and to stand up for each other is presumed if partners

  • live together for more than one year
  • live together with a common child,
  • care for children or dependents in the household, or
  • are authorized to use the other's income or assets.

There is no mention of sex at all, or of any gender or even the fact that it should be exactly two people. This is about social and financial dependence, and about the fact that married couples (who have to depend on the other if one of them still has income, instead of receiving social benefits) should not be worse off than non-married partnerships.

Please also note that courts have ruled that just living together, without any financial entanglements, for example sharing an apartment where each party pays their rent and their food, and they have contracts on how they divide up payments for internet or water bills, is not a marriage-like relationship. It needs to have this factor of shared responsibility over something.

A whole different topic is to prove that one lived in a marriage-like relationship for family immigration purposes when they were not allowed to marry in their country of origin, for example gay couples in countries where gay relationships are illegal and marriage would be evidence of a crime. For those laws and regulations of what constitutes a "marriage like-relationship", we would need at least a country of origin. I know it's customary to write answers for all countries, but that would be answers for all countries multiplied by all countries. Immigration law might also change independently of German social/financial definitions. That is just too much. For that kind of information, the Expatriates SE with exact information about a specific country and situation might be more appropriate.

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  • what duties are you referring to?
    – njzk2
    May 2, 2023 at 19:13
  • also, not that, contrary to other countries like Canada, that sort of partnership still requires signing official paperwork.
    – njzk2
    May 2, 2023 at 19:15
  • @njzk2 For example, everybody unemployed gets unemployment benefits or social security benefits. If you are married, you don't, if the other partner still has a job. Same goes for those "Einstehensgemeinschaft". Only if all of them are unemployed, they get payments from the government. Payments are also reduced for two married unemployed people compared to two singles, on the assumption that married people share costs, while two singles don't. Same now goes for "Einstehensgemeinschaft". There is probably more I don't know of.
    – nvoigt
    May 3, 2023 at 5:09
  • what! that's crazy!
    – njzk2
    May 3, 2023 at 20:02
  • On the other hand, income tax is also reduced. A couple is basically treated the same as two people with half the income each.
    – gnasher729
    May 4, 2023 at 15:08
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De facto relationships are recognised in the Family Law Act

The criteria for being in a de facto relationship are spelled out in s4AA:

  • Not married
  • Not related
  • “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”

(2) Those circumstances may include any or all of the following:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

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Within Pennsylvania, in the United States, at least until Common Law marriage was abolished on 2005, not only did the couple have to present themselves as being married (i.e. identify themselves as married to friends and family), but they must be capable of marriage (of age, able to consent, not currently married to someone else) and they must both exchange words of either immediate intent to marry.

Capacity means that each spouse has the legal ability to be married. In Pennsylvania, this means that the parties:

  • are of the opposite sex,
  • are unmarried, and
  • are at least 18 years old.

In Pennsylvania, "present intent to enter into marriage" requires each spouse to exchange a vow stating their intent to be immediately married. This is different than, for example, a plan to marry sometime in the future. To illustrate, "I take you as my husband" expresses a present intent to marry. If combined with a similar statement by the husband, a common law marriage would be created. In contrast, "I would like you to be my wife" expresses a future intent to marry and does not create a common law marriage.

In the absence of proof of exchanged words of intent (primarily used when one person is unavailable to vouch that they exchanged words of intent, such as if they died):

Some types of evidence that might be useful in proving the existence of a common law marriage include:

  • evidence that the parties lived together (jointly signed leases, mortgages, bills)
  • testimony from friends and community members that they considered the couple husband and wife
  • tax returns showing filing status as married
  • proof that the spouse(s) designated the other as a beneficiary on life insurance and pension benefits, and
  • joint credit applications and other certified statements showing that the couple held themselves out as married.
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In jurisdictions with common law marriage, the critical factors for establishing a common law marriage are that members of the couple have held themselves out to the public as married and have considered themselves to be married.

There could be other circumstances in which a marriage-like relationship is relevant, but that would depend upon the particular consequence of a marriage-like relationship that matters.

For example, some health insurance companies in the United States have established criteria short of common law marriage that constitutes a "domestic partnership" sufficient to include someone you are in a marriage-like relationship with for health insurance benefits purposes. Often insurance companies want six months to a year of living together, mutual health care powers of attorney, and a statement that members of the couple are cohabiting on a long term basis and intend to do so indefinitely.

Unlike the United Kingdom, the United States does not provide welfare or pension type benefits on the basis of a marriage-like relationship, although it does sometimes make remedies like domestic violence protective orders or domestic violence crime prosecutions available in cases involving people in marriage-like relationships.

But, the U.S. Social Security Administration has recognized the concept of a "putative marriage" which is a relationship in which one or both members of the couple believe themselves in good faith to be married, even though they are not (e.g. because they mistakenly believed that they were divorced when a final divorce order never entered, because one putative spouse didn't know that the other was married, because the relationship was incestuous and one or both members of the couple did not know of that relationship, a marriage license wasn't obtained following a ceremonial wedding, etc.). Some U.S. states recognize the putative marriage doctrine for limited purposes but not common law marriage, although Colorado recognizes both the putative marriage doctrine and common law marriage. A putative marriage ends as to a person when that person no longer has a good faith basis to believe that they are married and provides equitable remedies comparable to the rights of a spouse insofar as it is possible, that accrued during the putative marriage.

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