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Cohabitation has been around for much longer than the institution of marriage .

In fact, but not in law, the only difference was that marriage was a formal event and status, whereas cohabitation does not have nice, fancy legal goal-posts.

It wasn't always that way. The early common law did recognize, as marriage no less, a consensual relationship between husband and wife, without any formal ceremony, provided the relationship had been consummated. Hence the term common law marriage. But now, almost every jurisdictions tightly controls marriage, and the many advantages that go with it, by imposing formal conditions: age limits, ceremony, oath etc.

When does cohabitation start?

There is no set number of occurrences of sex that constitute cohabitation.

What about moving in with one another but with abstinence of sex?

With so much uncertainty, the common law s most recent position on cohabitation has been to ignore it entirely. Once statute law began regulating the conditions of marriage, and unless the parties married, the common law took them as separate persons, no matter how many bacon and egg breakfasts, toothpaste or dirty laundry has been shared together.

Ironically, relationships based not on marriage but on cohabitation, have been given the vernacular moniker of "common law relationships" or even common law marriage .

Legal marriage, on the other hand, requires a license, an official, two persons and a few choice words et voila. A nice clean start date and as for the end, well the law has that all covered.

Statutes have addressed the common law's "omission" such that a long cohabitation can create legal rights no less entangling than a long marriage. For example, when entitlement to a pension is at stake, the date of cohabitation suddenly looms large.

So why cohabitate anyway?

• You do not need to meet the legal requirements of marriage, such as being of age or being divorced from a previous marriage;

• Many are spooked by the financial and emotional cost of a divorce and swear off marriage for the next go-around;

• Some, agnostically, "don't believe" in marriage or find it too riddled with religious overlays of traditional roles, usually resulting in the woman doing all the housework and the man thus enabled to empower his career; and

• Others use cohabitation as a trial for marriage - "let's see if we get along before we get married". Statistics Canada reports that 4 out of ten persons living together in the 80s, were married by the 90s.

For all the grief cohabitants throw at marriage, they owe the fulcrum of their rights to marriage in spite of early attempts to invoke equitable remedies.

Even today, most common law relationships or "intimate cohabitants" will not let ownership to real property or vehicles be thrown to lawyers and judges. Instead, they will address ownership on title when the asset is purchased. Or they will retain receipts so the Picasso doesn't end up an ex-boyfriend's constructive trust claim attached.

Initially, as late as 1965, a Canadian Court, in Prokop v Kohut found that cohabitation outside wedlock. being immoral, it did not deserve or merit the overseeing of the Court to address break-up inequities:

". the Court can give her no relief. I take it that this claim is for compensation to the plaintiff for the money she gave the defendant, and for the services she rendered by way of housework and farm work, while they lived together. But the foundation of the relationship between these parties was their illegitimate cohabitation."

In 1978, Canada's Supreme Court finally breathed life into the equity-based approach in order to recognize property rights of a wife where, at common law, they did not exist.

In Rathwell v Rathwell. the respondent wife contributed directly and indirectly to a real property asset but at separation, found herself off title and orphaned by the common law. The Supreme Court:

"It seems to me that Mrs. Rathwell must succeed whether one applies classical doctrine or construc­tive trust. Each is available to sustain her claim. The presumption of common intention from her contribution in money and money's worth entitles her to succeed in resulting trust."

And then, in 1980, eureka !

Becker v Pettkus was published by the Supreme Court (summarized in Important Family Law Cases ) followed by Peter v Beblow in 1993, together inspiring an impetus of statute law that has not abated to this day, gradually extending to cohabitants, subject to legal strict thresholds, support and property rights including the all-important pensions .

But it is not straight-forward and can be subject to considerable judicial discretion.

In Federic v Therrien (2003, Ontario), a man (a taxi-driver) moved in with a woman and she supported him but they did not pool their resources. He was injured in a motor vehicle accident and she continued to support him during his convalescence, and he later started to pay her back. When she got an inheritance, she bought a house.

"Ms. Therrien testified that they did discuss, after the house was purchased, that he could gain an interest if he started to pay half of the mortgage and half of the expenses, but he never did contribute very much. She purchased the furnishings for the house and paid for most of the groceries and other expenses."

When they separated, Dario Frederic claimed an interest in the house based on the constructive trust doctrine as set out in Peter v. Beblow but the Court gave him nothing concluding he:

". lived in the house without paying a proportionate share of the mortgage or other expenses, or otherwise contributing. An equitable doctrine ought not to be invoked in such circumstances."

Unlike marriage, where entitlement commences from the get-go, legal rights as between cohabitants typically do not accrue unless the person has co-habited for the length of time as set out in the relevant statute.

For example, British Columbia Family Relations Act provides that a spouse may have support entitlement after separation if she/he:

". lived with another person in a marriage-like relationship for a period of at least two years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender."

In Ontario, the threshold is as follows:

". have cohabited, continuously for a period of not less thanthree years. or in a relationship of some permanence, if they are the natural or adoptive parents of a child."

But what is a "marriage-like" relationship?

In Molodowich. Judge Kurisko of the Ontario District Court sitting in Thunder Bay, used this list of factors:

"SHELTER: Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?

"SEXUAL AND PERSONAL BEHAVIOUR: Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings toward each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?

"SERVICES: What was the conduct and habit of the parties in relation to preparation of meals, washing and mending clothes, shopping, household maintenance (and) any other domestic services?

"SOCIAL: Did they participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

"SOCIETAL: what was the attitude and conduct of the community towards each of them and as a couple?

"SUPPORT (ECONOMIC): What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement between them which both agreed would be determinant of their overall relationssip?

"CHILDREN: What was the attitude and conduct of the parties concerning children?"

This list has been picked up by other provinces such as British Columbia, and has become known as the "Molodowich test".

Canadian family law is being besieged by same-sex interests who have successfully, to date, acquired marriage rights as well as equivalency in terms of cohabitation relationships. The spill-over from this has caused rushed amendments to family law statutes which now, for the most part, recognize same-sex cohabitations on par with heterosexual couples.

At this time, circa 2007, the law is not cohesive from Newfoundland to British Columbia as each jurisdictions struggles with cases coming from their courts of appeal and Canada's Supreme Court, to the extent that such particular cannot be avoided based upon stare decisis, and the political will of the people.

Alberta, at present, requires a "relationship of interdependence. for a continuous period of not less than 3 years."

An important bundle of rights for persons who have lived together for a long time as "husband and wife" ("wife and wife" or husband and husband) are intestacy rights; the rights of a surviving spouse to inherit a large portion of the deceased's estate where there is no will. Saskatchewan's Intestate Succession Act defines "spouse" as including a person who "cohabited with the intestate as spouses continuously for a period of not less than two years, and at the time of the intestate's death was continuing to cohabit with the intestate or had ceased to cohabit with the intestate within the 24 months before the intestate's death."

Provincial human rights statutes may prevent discrimination based on marital status. Ontario's Human Rights Code prohibits discrimination based on marital status which it defines as:

". the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage".

The Canada Pension Plan defines "common-law partner" as:

". in relation to a contributor, means a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year. For greater certainty, in the case of a contributor s death, the "relevant time" means the time of the contributor s death."

But, again, CPP contains strict thresholds and limitations within which an application for a division of a deceased contributor's CPP credits has to be made

Cohabitation agreements are a very lucrative field for family law lawyers as many prospective cohabitants are reluctant to run into the minefield of an evolving law of cohabitation.

Historically, these types of agreement were ignored by the Courts. They would not enforce them as living together outside of wedlock was considered immoral. Now, to some extent aided by statute and by the eroding of the legal principle that extra-marital sex is immoral, most jurisdictions will likely enforce a cohabitation agreement. But like a pre-nuptial agreement. a cohabitation agreement starts to rust from the moment it is signed as circumstances change that may not have been contemplated at the time of signature, the most notable being the birth of a child. However, for those seeking to write their own law, and with the caveat that no lawyer can ever 100% guarantee the enforceability of a family law contract between spouses against the efflux of time or circumstance, a cohabitation agreement is far better than none at all.

Published: Tuesday, December 04, 2007

Last updated: Monday, November 07,