Regulation of Cohabitation and Marriage in Canada

23 Pages Posted: 4 Jul 2004

See all articles by Martha Bailey

Martha Bailey

Queen's University - Faculty of Law


Marriage in Canada had lost much of its legal significance because of the extension of many of the incidents of marriage to unmarried cohabitants of the same or opposite sex. This process has resulted in large part from decisions of the Supreme Court of Canada that discrimination on the basis of sexual orientation or marital status is constitutionally impermissible. In a decision that seemed to many a surprising reversal of this trend, the Supreme Court of Canada in 2002 ruled that legislators could constitutionally exclude unmarried couples from family property laws. The effect of this decision has been to revive the legal significance of marriage. At the same time, courts have resurrected the social significance of marriage by accepting the argument of same-sex marriage advocates that a "separate but equal" civil union institution would not respect the constitutional guarantee of equality and by endorsing the constitutional right of same-sex couples to the symbolic value of marriage as a public and legal celebration of a relationship. Same-sex marriages may now be legally celebrated in three Canadian provinces, and the federal government has made a commitment to open up civil marriage to same-sex couples across the country. While some same-sex couples and unmarried cohabitants have fought for spousal or marital status, others have sought to avoid the burdens associated with spousal status. After the same-sex marriage debate is concluded, Canada will be ready to move on to consider whether all of the legal privileges and burdens now assigned to those in conjugal relationships, whether married, unmarried, same-sex or opposite-sex, can be justified.

Suggested Citation

Bailey, Martha Jane, Regulation of Cohabitation and Marriage in Canada. Law and Policy, Vol. 26, No. 1, pp. 153-175, January 2004. Available at SSRN:

Martha Jane Bailey (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6

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