The wind is glutted today with a dry piercing heat amid the swelling balmy air. It is reminiscent of an impending storm being tracked across a cresting lake on a summer day while squinting into the distance at mounting grey clouds. Meanwhile the turbulence translates the fields of flourishing corn stalks into a set of chimes, a peculiar rustle adorned by an emerald green mantle. The wind, the heat and the changing atmosphere invite native lethargy. It is summer at last!
And by the measure of all that prevails – from weather to pandemic to vaccines to medical insurance to international borders – we’ll soon be rocketing to the wild blue yonder like the corn fields. To sustain the tranquillity of this Sunday afternoon I listened on Zoom to an historic account of the changing face of marriage delivered by a United Church minister who somewhat mournfully related what she called the declining interest in religion. It is an observation I would have related otherwise; viz., a rising interest in religion specifically its social, political and cultural persuasion. What has awakened is a growing admission that what draws people to cohabit for lengthy periods is anything but marriage in the so-called traditional sense; that is, sans the approbation of religious ceremony. Indeed the minister stated that though she has performed many non-traditional marriage ceremonies, by contrast the religious ceremonies are vastly fewer. The relation of this information sparks curiosity regarding inheritance and other accommodations which have normally arisen in the heterosexual context as support, alimony or property division entitlements. The conversation provoked as well a hitherto irrelevant interest in cohabitation agreements which after all are no more than partnership agreements for those who cohabit and for whom each is of primary importance in the other’s life as opposed to mere commercial viability. Canada’s Constitution broadly divides legislative authority by Ss. 91 & 92 between federal and provincial jurisdiction. Property and civil rights (encompassing marriage and partnership generally) are within provincial jurisdiction. The Ontario Family Law Act has over the years been modified to include those personal alliances which prevail notwithstanding sex or religion. The codified entitlement of “partners” of any description now protect unwitting love birds just as before. While cohabitation agreements – like commercial partnership agreements – are an available resource to impose contractual obligations between the parties, their use is understandably infrequent. A question on the Zoom meeting was raised concerning the filing of the cohabitation agreement with the court. To my knowledge the only private document (as opposed to court documents of public record) which can be “filed” with the court is a last Will & Testament. Otherwise a cohabitation agreement is just like any other contract between private parties; namely, it is kept in a personal dossier or retained by the solicitor for one or both parties. I should add one further important qualifier. It is the general restriction in law that one cannot do indirectly what one cannot do directly; which is to say, in this instance the terms of the cohabitation agreement cannot dilute the broad entitlements captured in the provincial legislation which is always a fall-back. For example, a cohabitation agreement which, in the event of separation, prohibits division of assets is nonetheless susceptible to an over-riding thesis that if one were in need, the other may be required to assist. The upshot is that being a spouse or partner of any description amounts to a distinction without a difference.
While it may once have afforded a simpler view of the world to confine alliances to those sanctioned by religious ceremony, this has proven to be unsustainable. Too often religion prohibited marriage to those of other religions, or to those of other races, or to those of other castes – not to mention those of the same sex. The legitimacy of partnership of any description has seldom admitted to either religious or other prerequisites. This evident confusion was made all the less palatable when conjoined with political aspirations – the much maligned state/church cohesion.
The blissful lining of the pandemic has been its diminution of all to the same territory. Nobody is spared humanity. Nobody has warranted special elevation. We’re in this together. The walls about us are daily narrowing. We have proven it is far easier and more adventitious for all to rise above petty differences and unfamiliarity.
Rationality like money doesn’t disappear, it just changes hands.