Volume 17, Number 1, 2000
This issue featured papers presented on an October 1999 Symposium held at Queen's University on Registered Domestic Partnerships.
Articles
- Foreword: Domestic Partnerships - Martha Bailey
- Stories of Family Life: Cohabitation, Marriage and Social Change - Carol Smart
In Britain, and in many Western developed societies, there is currently a concern over family life and family stability. Statistics are routinely used to suggest that ‘the family’ (conceptualised as a ‘traditional’, nuclear unit based on heterosexual marriage and reproduction) is increasingly unstable and that developments such as high divorce rates and cohabitation rates are socially undesirable. On the other hand, there is an established feminist position which suggests that marriage has been a patriarchal institution and that the avoidance of marriage is an important element in the acquisition of women’s equality. This paper argues that these kinds of analyses may be an oversimplification of the complex processes of social change, based on an idealised version of the past or future, as well as on a lack of understanding of why people make the choices that they do. Based on a qualitative study of heterosexual cohabitees, this paper suggests that the choice to cohabit rather than marry can signify an adherence to new values of equality in family life, but that for some, cohabitation is not a ‘progressive’ option so much as the best available option when faced with hardship and limited opportunities. It is suggested, therefore, that the quality of family life cannot be judged simply by the presence or absence of marriage and that policies, such as those espoused by the Labour Government in Britain, which rhetorically favour marriage, are deeply problematic.
- Contemporary and Historical Diversity in Families: Comment on Turcotte's and Smart's Papers - Margrit Eichler
- Civil Developments: Patterns of Reform in the Legal Position of Same-Sex Partners in Europe - Kees Waaldijk
This article sketches the main legislative developments around homosexuality in the last three centuries in Europe. Drawing on enactments from all major European countries it presents as a standard sequence that of decriminalisation, followed by anti-discrimination provisions, and then again by partnership legislation. It suggests that countries that so far have not completed decriminalisation of homosexual acts, or that have not gone beyond decriminalisation, will come round to prohibiting discriminations based on sexual orientation, and will eventually provide legislative recognition of same-sex couples. In the end that recognition might well take the form of opening up civil marriage.
- Models of Registered Partnership and Their Rationale: The British Columbia Law Institute's Proposed Domestic Partner Act - Thomas G. Anderson
In 1998, the British Columbia Law Institute (the "BCLI") issued a Report respecting the need to enact domestic partner legislation. Under the proposed legislation, any two adults would be permitted to make a declaration that they were domestic partners and, upon registration of the declaration, they would have status equivalent to that of married spouses. The BCLI proposal was made in the context of a project examining the extent to which British Columbia law recognizes spousal and family status. This paper is a review of the recommendations made by the BCLI with particular attention to the proposed Domestic Partner Act.
- Intimate Relationships in the New Millennium: The Assimilation of Marriage and Cohabitation? - Winifred Holland
This article examines developments relating to marriage and cohabitation over the past 30 years. Included is an overview of recent decisions of the Supreme Court of Canada dealing with opposite and same sex relationships, and the aftermath of those decisions, and a discussion of future Charter challenges. Reforms are considered and the article focuses on arguments for and against further extension of rights and obligations based on the ascription of status model. The author concludes that the ascription of status model is to be preferred over the contract model as the "default option" and that the increasing assimilation of marriage and long-term cohabitation is appropriate
- Alternatives for Extending Spousal Status in Canada - Nicholas Bala
Charter litigation and the advocacy of gays and lesbians is forcing Canadian lawmakers to deal with issues related to the legal recognition of same-sex relationships. This paper identifies and comments on some critical issues that lawmakers need to address as they consider alternatives and respond to the challenge posed by M. v. H. to extend the concept of "spouse." The regulation and support of same-sex and other domestic relationships requires a combination of formally recognized legal relationships (like marriage), domestic contracts, and ascription. Until recently, most politicians in Canada were reluctant to deal with the legal recognition of same-sex relationships, and the responsibility for providing legal recognition to these relationships largely has fallen to the courts. Legislation like Ontario’s Bill 5 and the federal Modernization of Benefits and Obligations Act (Bill C-23) adequately address the immediate challenge posed by M. v. H.. However, Parliament should go further and enact legislation to allow same-sex partners the legal right to enter into a formal marital status. While it may be useful to consider having terminology which distinguishes formal same-sex relationships from traditional opposite-sex marriage (for example "same-sex partnership" or "domestic partnership"), same-sex partners should be entitled to enter into the same type of formal legal relationships as heterosexuals. If the federal Parliament is unwilling to enact legislation to allow formal same-sex partnerships, it seems highly likely that future court-based Charter challenges will require this. There is a role for domestic contracts between same-sex and other domestic partners, though there are real limitations to such contracts. There exists a range of situations in which the law should ascribe rights and obligations to those who have lived in conjugal domestic relationships for a certain period, even though they have taken no steps to formalize their relationship. However, if those who live in conjugal relationships (including same-sex partners) have the legal option of formalizing their relationships, it seems appropriate to have some distinctions between those who have chosen to formalized their relationships and those who live together acquiring rights and obligations only by ascription. It might also be useful to enact domestic partnership legislation that would allow two individuals to enter formal relationships that have more limited rights and obligations than full marital status. However, given the obligations that will arise from such relationships, it seems likely that such relationships will be of little interest to individuals not in conjugal relationships.
- Assessing the Impact of Changing Marital Rights and Obligations: Practical Considerations - Albert Wakkary
The purpose of this paper is to identify practical considerations for assessing the possible impact of various proposals for changing the content of marital rights and obligations . The considerations are intended to help discussants assess the impact of various policy proposals. The impact of a policy change generally consists of the effect of the change on: the number of individuals who gain or lose as a result of the change, the distribution of winners and losers by income and/or other characteristics , and government revenues. Estimating the impact of a proposed policy change requires the use of microsimulation techniques and estimates of the potential behavioural response. For reference and illustrative purposes, appended to the paper (Appendices B and C) are estimates of the population of same-sex couples and the impact on federal revenues of extending spousal tax treatment to same-sex spouses in 1994. These estimates are reproduced from an affidavit prepared by the author for Rosenberg. While the revenue estimates provided in Appendix C are based on microsimulation techniques, it is not the intention of this paper to provide an estimate of the revenue impact of all the possible options for changing the content of marital rights and obligations. Instead, the considerations discussed in this paper should provide a general sense of the direction and magnitude of the possible impact of various changes. The paper focuses on the personal income tax system in Canada to illustrate how the considerations discussed in the paper relate to assessing the impact of various proposals. The same considerations, however, could apply to assessing changes to direct expenditure programs that are part of a country’s tax/transfer system.
- The Bride Wore Pink... To the Property (Relationships)Legislation Amendment Act 1999: Relationships Law Reform in New South Wales - Reg Graycar & Jenni Millbank
The law and the attitude of the community to persons living outside wedlock and having children has varied tremendously over the last few hundred years. Three hundred years ago the law would solve the present situation simply. The community would have shown its disapproval of the conception of children out of wedlock by having the plaintiff stripped to the waist and publicly whipped outside the parish church after morning prayer before being transported to America with her children. ...Nowadays the plaintiff argues that she is entitled to two million dollars from the defendant and to be supported by him in the lifestyle to which he made her accustomed. That result is produced, she says, because of the operation of the De facto Relationships Act 1973 [sic].