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Jay Currie

One Damn Thing After Another

12/13/2004

One Potato, Two Potato, Three Potato, Four...

One of the sillier concerns which the SCC's decision has raised in the minds of some otherwise sensible commentators is the possibility of polygamy traipsing in through the door opened by gay marriage,
Again, my basic question is, if there's nothing exceptional about the conjugal relationship between a man and a woman, then what's so damn special about the number "two"?
colby cosh
There is, of course, nothing at all special about the number two. Indeed, there is no reason why marriage law cannot embrace the multitude. Because marriage law is an entirely arbitrary notion.

The real issue in this entire debate is what the devil the government is doing involved in the solemnization of marriage in the first place. If the socons had their wits about them they would be pushing for the abolition of all legal recognition of marriage in whatever form. Get the State out of the bedrooms of the nation and let individuals, in consultation with their God, priest, imam or the guy down the street set up whatever arrangements they happen to want to.

In actual fact, the state of the law in Canada is such that this is de facto the case in any event. Here's why: there is no particular reason that I cannot live with two (or ten) women if I want to. It is not as if the State is going to arrest me. (Unless I, er, marry both of them.) However, if I do so for a couple of years or have children with both of them, if the menage breaks up I am going to be hit with claims arising in common law and in equity.

I am not aware of a case in which a claim for a common law relationship has been made simultanously by two women who had been living with the same man at the same time; but there are certainly some where the same man is alledged to have lived with two women in series. (And, while I don't remember the details, didn't Mel Lastman's mistress seek the Court's help in prying a few bucks out? Palimony is really nothing more than an equitable claim grounded in a marriage like relationship.)

Similarily, if a man was living with two women at the same time and left them both, I suspect an action would lie for a constructive trust with respect to each of those women.

Similarily, married or not, the parents of a child have responsibilites towards that child which are enforceable at law.

Now all this occurs without the state's sanction. A person is liable in common law or in equity regardless of whether or not they have registered the relationship(s)or been formally married. So, in effect, on the disolution of the relationship, the same rules as apply at the end of a marriage can be made to apply where there is no marriage.

Which makes the entire question of number of partners incidental. (Though it is rather entertaining to imagine the situation where Bob is legally married to Ted, Carol legally married to Alice and they have four children whose actual father, absent a DNA test, is unknown.)

The problem here is that the State and the Courts have gradually refused to deny un-married couples the same consequences on the break-up of the relationship as would follow on the disolution of a legal marriage. This has occured for a variety of reasons but its effects have been to negate any advantage a person might derive from being legally married.

So why bother? Or, more exactly, why should the State involve itself in the ever complex question of who can get married and how, if, in the end, its own actions ensure that the real standards are duration and children.

And, here's a thought, just for fun, if the State does feel it necessary to register unions of whatever sort, let's save some time and say none can be registered which have not passed the three year mark or produced children? Churches and the guy down the street can marry anyone they like.....but maybe the State should set a higher standard before all of the cranky mechanisms of family law are brought to bear on the end of B,T,C&A.