Manitoba Justice
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Family Justice
Family Law
Family Law in Manitoba - 2005 Edition
Chapter 3
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Last revised: Spring 2005
- Getting Married
- Unmarried or Common-Law Marriages
- The Rights and Duties of Married Spouses/Common-Law Partners to Each Other While Living Together
MARRIAGE
Getting Married
Legal marriage gives status to individuals as spouses, resulting in certain rights and obligations. The law places some restrictions on who can enter into a valid marriage. There are also rules about how a valid marriage takes place.
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Closely related persons: A person may not marry his or her grandparent, parent, child, grandchild or brother or sister.
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Persons certified as mentally disordered cannot marry unless a psychiatrist certifies in writing that they are able to understand the nature of marriage and its duties and responsibilities.
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Persons under 18 years of age (minors) cannot marry unless:
Where the minor is over 16:
- both of the parents give their written consent, or
- where the parents are separated, the parent with whom the minor is living gives written consent, or
- a judge gives written consent, or
- where a child care agency or the director of Child and Family Services is the child's guardian, the director or a judge gives written consent, or
- where one parent is dead, the other parent gives written consent, or
- where both parents are dead, the child's guardian gives written consent
Where the minor is under 16:
- only if a judge gives written consent to the marriage.
Anyone of any age who has been divorced, or whose spouse has died, may remarry without the consent of any other person.
As of September 16, 2004, persons of the same gender are able to marry in Manitoba. In a court decision issued that date, it was found that the opposite sex requirement in the common law definition of marriage was of no legal force and effect, because it violated the equality rights guaranteed by the Canadian Charter of Rights and Freedoms. The definition of marriage was changed in Manitoba to the voluntary union for life of two persons to the exclusion of all others. Similar decisions have been made in a number of other provinces and in the Yukon Territory.
How a Valid Marriage Takes Place
- Marriage licence
The couple must first get a marriage licence, unless they both regularly attend a place of worship and banns declaring their intention to marry have been proclaimed during a religious service. Marriage licences may be obtained from authorized businesses throughout the province. In addition, in Winnipeg licences can be obtained at Vital Statistics, at 254 Portage Avenue. Outside Winnipeg, you can also apply at the nearest office of either Manitoba Health or Manitoba Family Services and Housing. The couple must apply together for the marriage licence. It must be obtained at least 24 hours before their wedding unless the person performing the ceremony is persuaded that the time period should be waived because of exceptional circumstances. The wedding must take place within three months after the licence is issued.
- Ceremony
There must be a ceremony, either religious or civil. A civil ceremony is a non-religious rite and must be performed by a marriage commissioner. Vital Statistics has a list of marriage commissioners who are authorized by law to perform civil marriages in Manitoba. A marriage ceremony, whether religious or civil, may take place anywhere in Manitoba—for example, in a church, private home, park or hotel. At least two witnesses must be present. For further details about the requirements that must be met before entering into a marriage and the relationship that prevent a legal marriage, contact:Vital Statistics Agency
254 Portage Avenue
Winnipeg MB R3C 0B6
Phone: 945-3701
Fax: 945-3128
Toll-free: 1-800-282-8069 (Ext. 3701)
E-mail: vitalstats@gov.mb.ca
Website: www.gov.mb.ca/cca/vital/index.html
Unmarried or Common-Law Relationships
Each chapter of this booklet discusses a different area of family law and should be reviewed for more information on the legal remedies available to common-law partners and married spouses. Please remember this booklet provides general information only. How the law affects any person will depend on the facts of the particular case. If you have a legal problem or need specific advice, it is best to consult a lawyer who practises family law.
Some people think that after a couple lives together for a certain number of years, they become legally married, although they have never formally married. This is not true. These kinds of relationships, often called common-law relationships, are not the same as legal marriages. However, the law does give unmarried partners, or common-law partners, in certain circumstances, many of the same rights and responsibilities that married couples have. These rights and responsibilities are given to both same-sex and opposite-sex common-law couples.
When Do Couples Become Common-Law Partners?
People who live together in a conjugal or marriage-like relationship are often referred to in Manitoba family laws as common-law partners. There is no single definition of common-law partners or a common-law relationship in Manitoba law. Some laws say that common-law partners must live together for a specified period of time before each partner acquires certain rights or responsibilities. Other laws require that the two people must intend to live together in a conjugal relationship on a permanent basis, but do not set out a specific length of time. However, every Manitoba law that includes a definition of common-law partner, includes couples who have registered their relationship with the Vital Statistics Agency, no matter how long the registered couple has lived together. It is important to look at the particular law to find out whether or not a couple qualify as common-law partners under that law.
Registering a common-law relationship is completely voluntary. Common-law couples are not required to register. A common-law relationship may be registered by completing and filing a simple form with the Vital Statistics Agency. For information on registering a common-law relationship, the fees for registering and certificates proving registration, contact:
Vital Statistics Agency
254 Portage Avenue
Winnipeg MB R3C 0B6
Phone: 945-3701
Fax: 945-3128
Toll-free: 1-800-282-8069 (Ext. 3701)
E-mail: vitalstats@gov.mb.ca
Website: www.gov.mb.ca/cca/vital/Index.html
In the past, some Manitoba laws only recognized common-law relationships between opposite-sex partners and excluded gay and lesbian relationships. In 2001, Manitoba passed a law that changed 10 provincial acts to ensure that both opposite-sex and same-sex common-law partners were treated equally under those acts. The 10 Manitoba acts that were changed are:
The Family Maintenance Act (non-divorce support)
The Dependants Relief Act (support from estates)
The Civil Service Superannuation Act* (civil servant pensions)
The Legislative Assembly Act* (pensions for MLAs)
The Pension Benefits Act* (provincially regulated pensions)
The Teachers’ Pension Act* (teachers’ pensions)
The Fatal Accidents Act (death benefits)
The Manitoba Public Insurance Corporation Act (death benefits)
The Workers Compensation Act (death benefits)
The Queen’s Bench Act (the court that hears support applications)
Changes to most of these laws came into effect on July 6, 2001. The changes to the four acts dealing with pensions (marked * in the above list) have been in effect since January 1, 2002. Another law, called The Charter Compliance Act, amended 56 different Manitoba laws to bring them into compliance with the Canadian Charter of Rights and Freedoms, by treating opposite sex common-law partners and same-sex common-law partners the same way in such things as adoption rights and conflict of interest requirements. Most of The Charter Compliance Act came into effect on August 1, 2002, and the balance has been in effect since January 1, 2003.
Here are some examples of how common-law partners are treated under Manitoba law. Common-law partners who have:
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registered their common-law relationship with the Vital Statistics Agency or
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lived together for at least one year and have a child together or
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lived together for at least three years if there are no children of the relationship
have all the same rights under The Family Maintenance Act as legally married spouses, including the right to seek spousal support.
A common-law partner who is seeking protective relief under The Family Maintenance Act does not need to show the relationship has lasted any particular time. Under The Domestic Violence and Stalking Prevention, Protection and Compensation Act (as discussed more fully in Chapter 10, Family Violence), people who have lived together in a family, spousal or intimate relationship are able to seek relief from domestic violence. Anyone who is being stalked and who fears for his or her safety is able to seek relief under this act, and it will not be necessary to show that there has been a relationship between the parties.
Before June 30, 2004, Manitoba’s family laws dealing with property did not apply to people in common-law relationships; these laws only applied to married spouses. However, on June 30, 2004, a new law came into effect that changed this. The Common-Law Partners’ Property and Related Amendments Act changed the name of The Marital Property Act to The Family Property Act and it extended this and many other property laws to common-law partners who have either registered their relationship with the Vital Statistics Agency or who have lived together for a specified period of time. The Homesteads Act also now applies to common-law partners. See Chapter 9, Property, and Chapter 15, Death in the Family, for more information on family property laws.
A person may be entitled to a share of his or her common-law partner’s pension credits under the Canada Pension Plan or under The Pension Benefits Act of Manitoba. In the case of a pension governed by The Pension Benefits Act, if the common-law partners separated before June 30, 2004, the pension-owning partner must have filed a declaration with the pension plan administrator, opting in to the sharing provision, for the pension to be shared.
Unmarried partners may have rights to information about partners’ pension plans under both the federal Pension Benefits Standards Act, 1985 and The Pension Benefits Act of Manitoba. Both acts also may give a common-law partner rights to survivor’s benefits on a partner’s death.
Children born within marriage and those born to common-law partners have equal legal status and rights. The Family Maintenance Act gives unmarried parents certain rights respecting custody of their children. If the parents have lived together after the birth of their child, they have joint custody of the child unless a court orders otherwise. If the parents have never lived together after the child’s birth, the parent with whom the child lives has sole custody, unless a court orders otherwise. The Family Maintenance Act also has provisions for determining the parentage of a child when this is in dispute. These provisions are discussed in Chapter 6, Parentage.
Court applications for custody of or access to children of common-law relationships are no different from applications involving children of married parents. The court’s decisions are based on the best interests of the children involved.
Similarly, parents have equal responsibilities to support their children whether married to the child’s other parent or not. Manitoba’s Child Support Guidelines are equally applicable to unmarried parents and to those who are married.
The Rights and Duties of Married Spouses to Each Other While Living Together
When spouses or common-law partners separate, the law sets out their rights and duties to each other, for example, how property is to be divided and who is to pay support and how much. Chapters 8 and 9 explain these rights and duties.
Even when a couple is still living together, they have certain legal rights and responsibilities to one another. Some of these are explained below.
The Family Maintenance Act of Manitoba states that both spouses or both common-law partners have a duty to financially support and maintain each other while living together. This duty can be met by earning income outside the home or by running the household. In both situations the spouses or partners equally contribute to the welfare of the family. The right to financial support includes the right to receive reasonable amounts for clothing and other personal expenses on a regular basis, and the right to spend this money without interference from the other spouse or common-law partner.
The Family Maintenance Act gives spouses or common-law partners the right to request and receive financial information from each other while they are living together. For example, a spouse or common-law partner is entitled to information such as copies of income tax returns and itemized statements of earnings, assets and liabilities. If this information is not provided when requested, the court can order the spouse or common-law partner to provide the information and pay the other spouse or partner a penalty of up to $5,000.
The Family Property Act of Manitoba says both spouses or both common-law partners have the same right to use and enjoy family assets. To qualify as common-law partners under The Family Property Act, a couple must have either registered their relationship with the Vital Statistics Agency or they must have cohabited in a conjugal relationship for at least three years. A family asset is property that is owned by one or both spouses or common-law partners and is used for family purposes such as shelter, transportation or recreation. Examples of family assets are the family home, household furniture and appliances, family car, summer cottage, lawnmower and gardening tools. However, one spouse or partner does not have the right to use the other’s personal belongings (for example, clothing and other items that are not usually used by both of them).
The act does not prevent a spouse or common-law partner from selling or otherwise dealing with a family asset that is owned by him or her, unless such actions would seriously threaten the family’s financial security or the asset involved is the family home.
The Homesteads Act gives special protection to the family home, or homestead, which can be a house, a farmhouse or a condominium. The Homesteads Act defines common-law partners as a couple who have either registered their relationship with the Vital Statistics Agency or who have lived together in a conjugal relationship for at least three years. Where the homestead is owned by one spouse or common-law partner alone, the other spouse or partner must consent in writing before the owner can sell, mortgage, rent for three years or more, or otherwise dispose of it.
Where the spouses or common-law partners live on a farm, the special protection applies to not only the farm dwelling but also up to 320 acres of land.
Where both spouses or both common-law partners are the registered owners of the family home, both must agree in writing to any sale, mortgage, rental or other transaction involving it. A spouse or common-law partner who has disposed of the homestead without the other spouse’s or partner’s consent may be liable to that spouse or partner for damages. The defrauded spouse or common-law partner may also be entitled to seek compensation from the Land Titles Assurance Fund.
The Family Property Act gives spouses and common-law partners the right to apply at any time to the court for an accounting and equalization of family property. In the case of married spouses, this basically is property acquired by one or both of the spouses while they are married and living together. If a couple lives together for a time immediately before they marry, any property they acquire while they lived together is also included. For common-law partners, this is property acquired by one or both of them while they are cohabiting. To qualify as common-law partners under The Family Property Act, a couple must either have registered with the Vital Statistics Agency or have cohabited for at least three years. The court can order an accounting even if the parties are living together. See Chapter 9, Property, for further details.
The Pension Benefits Act of Manitoba applies to pension plans sponsored by an employer for employees in Manitoba. Every such pension plan must state that the pension benefits payable to a plan member who is either married or in a common-law relationship, will be in the form of a joint pension. This type of pension provides the spouses or common-law partners with a monthly pension guaranteed for the lives of both of them. To qualify as common-law partners under The Pension Benefits Act, a couple must have registered their relationship with the Vital Statistics Agency, or cohabited in a conjugal relationship for at least three years if either of them is married, or cohabited in a conjugal relationship for at least one year if neither of them is married.
If a plan member, or his or her spouse or common-law partner dies after the member retires, the survivor is entitled to a survivor pension. Amendments to The Pension Benefits Act that have been introduced in the legislature but are not yet law, will provide that unless the member and his or her spouse or common-law partner are separated, the survivor will receive a survivor pension of at least 60 per cent of the original pension. This provides protection for surviving spouses and partners, because they are guaranteed a minimum pension income after the other dies. Spouses or common-law partners may give up this protection by completing and signing a waiver form.
Employers must provide a yearly statement about the pension plan to every plan member. In addition, spouses or common-law partners of plan members are entitled to a copy of the statement if they request it. For more information about The Pension Benefits Act, contact:
Pension Commission of Manitoba
1004 - 401 York Avenue
Winnipeg MB R3C 0V8
Phone: 945-2740
Fax: 948-2375
Toll-free: 1-800-282-8069 (Ext. 2740)
The federal Pension Benefits Standards Act, 1985 applies to most federally regulated pension plans (Ex: the airlines and railways) and provides similar protection to spouses and common-law partners. For more information about this federal legislation and other federally regulated pensions, contact:
Office of the Superintendent of Financial Institutions of Canada
255 Albert Street
Ottawa ON K1A 0H2
Toll-free: 1-800-385-8647
Internet: www.osfi-bsif.gc.ca
