21 September 2014

Rethinking Marriage: Beta marriages, renewable-term marriages and other interesting ideas

It will probably surprise no one to learn that the reason why marriage is presumed to be permanent in the Western world stems from the Catholic doctrine of the indissolubility of marriage, you know, from this line in the New Testament: "what god hath joined together, let no man put asunder." Canon law on the irrevocability of marriage was all well and good when our life spans topped out at 30 in the middle ages; surely if you'd be entitled to the McDonalds senior's coffee discount at age 25 you could manage a life-long commitment to someone. However, considering that life expectancy in Canada shot from 59 for men and 61 for women in 1920 to 79 and 83 respectively in 2007, the notion of a single, life-long relationship takes on a somewhat more ominous aspect.

Interestingly enough, despite our increasing longevity, our enthusiasm for marriage has not yet begun to wane, although the rate of unmarried long-term relationships is increasing at a pace three times that of marriage and the divorce rate is a healthy 41%. The national divorce rate had held at this level for the last decade or so, after two sharp increases that followed the introduction of the federal Divorce Act in 1968 and the removal of the provisions about fault and matrimonial misconduct in 1985.

In 2012, I was asked to provide a keynote speech on the future of family law for a course put on by the Continuing Legal Education Society of BC. In light of the decline of religiosity as a compelling social force, and its replacement by a sort of secular rationalist humanism, I suggested that in the not too distant future we might see a flourishing of alternative family arrangements such as:
  • communalist families structures;
  • polyamorous or polyfidelitous families; and,
  • hive, creche and other cooperative approaches to the raising of children from multiple parents.
Given the rate of relationship breakdown, I also suggested that in the future we might see separation management aids such as:
  • the ability to register as a non-couple, expressly renouncing the existence of a marriage-like relationship;
  • property ownership and acquisition software to trace excluded property and family property;
  • term-limited relationship contracts; and,
  • separation insurance.
My presentation was surprisingly well received. However, it seems that I am not alone in my speculations. In a brilliant article for Time magazine, Jessica Bennett writes about a 2014 study by USA Network, yes the television network, on the relationship preferences and attitudes of millennials, those aged roughly 18 to 34. Bennett writes:
"They found all sorts of things: among them, that people cheat on the Internet (uh huh), that young people don’t think their relationships are like their parents’ (of course), and that everyone seems to have taken to the term uncoupling (yuck)."
Even more interestingly, Bennett notes that:
"Buried in the data was the revelation that almost half of millennials (43%, and higher among the youngest subset) said they would support a marriage model that involved a two-year trial — at which point the union could be either formalized or dissolved, no divorce or paperwork required. Thirty-three percent said they’d be open to trying what researchers dubbed the 'real estate' approach — marriage licenses granted on a five-, seven-, 10- or 30-year ARM, after which the terms must be renegotiated. And 21% said they’d give the 'presidential' method a try, whereby marriage vows last for four years but after eight you can elect to choose a new partner. 
"In total, nearly half of all of those surveyed, ages 18 to 49 — and 53% of millennials — thought marriage vows should be renewed, and nearly 40% said they believed the 'till death do us part' vow should be abolished. In other words: Beta marriages! ..."
These are some very interesting findings. They suggest that the generation just emerging into adulthood takes a starkly realist approach to relationships and recognizes not only the fact that some marriages fail but perhaps that some marriages should fail.

There were a number of ideas behind my suggestion of the term-limited relationship. At a basic level, I thought that a fixed term would give couples a regularly repeating opportunity to seriously consider the state of their relationship and reflect on their contentment, areas of dissatisfaction and areas for potential change and improvement. Too many couples, married or not, don't have regular check-ups with each other, and without the conscious airing of grievances, malaise and discontentment, irritation can fester, ultimately diminishing everyone's quality of life and encouraging the sort of seething resentment that makes the lives of divorce lawyers so comfortable yet so miserable.

I also thought that establishing a presumptive termination point would flip the normal dynamics of separation by requiring the consent of both to continue the relationship for another term. This might spare one or both parties from at least some of the blame and guilt involved in deciding to end a relationship; after all, it was going to end anyway. The fixed termination point would also allow couples to proactively address common trouble spots by planning leases, mortgage renewals, car loans, time share obligations and other commitments ahead of time.

The equality of opportunity to decline renewal might also empower a party to set the terms on which the relationship might continue. These terms might address irritating personal habits, responsibility for common chores, attendance at counselling, spending patterns and shared debts, relationships with others, means of conflict resolution and management of family obligations. In my experience, marriage and cohabitation agreements that call for a review are rarely actually reviewed, either because the couple have forgotten about the term or because the review may prejudice the survival of the relationship. In a fixed-term relationship, a review would be necessary for the continuation of the relationship.

Would term-limited relationships work in real life? Honestly, I don't know, but I think the idea is worth considering, particularly by younger couples. So, apparently, do the millennials. Here's the infographic from Bennett's Time article:

In case you can't read it, the results of the USA Network survey are essentially these:
  • 10% of respondents would be interested in a multiple-partner relationship, in which a marriage could be to more than one person at a time (interestingly, the Family Law Act defines "spouse" in such a way as to permit more than one relationship that simultaneously qualifies as spousal);
  • 21% would interested in a relationship that would last for four years, with an option of a further four;
  • 36% would be interested in marriages in which the licence to marry is granted for fixed terms, and must be renegotiated to be extended; and,
  • 43% would in interested in a trial relationship of two years, a "beta" marriage, after which the relationship could be formalized or dissolved.
Interesting ideas all. However, it is worth noting that the survey also discovered that 31% of respondents thought that marriage should continue to be permanent and the legislation allowing divorce should be rescinded.

I'll write about the Family Law Act and polyamorous spousal relationships in a future post.

My thanks to my friend and colleague Zara Suleman for bringing this interesting article to my attention. Thanks also to feedly.com for thoughtfully caching an earlier draft of this article, thus saving me from a painful re-write after an even more painful accidental deletion.

07 September 2014

Spouses' Half-Interest in Family Property May Not Expire: A comment on the FLA's only triggering event

A recent question on a listserv for family law lawyers, and another from a colleague involved in a collaborative process practice group, have raised some interesting issues for me about the effect of separation as a triggering event under the new Family Law Act. I swear, the new act is like a matroyshka doll; just when you think you've got it figured out, you discover another layer of meaning underneath.

Triggering Events

A "triggering event" is a hard thing to explain; in a nutshell, when a triggering event happens each spouse is deemed to receive a one-half interest, as a tenant in common, in all family property.

Let me unpack that a bit. Family property is the pool of assets that accumulate during a couple's relationship, minus certain kinds of assets, such as assets brought into the relationship and gifts and inheritances received during the relationship, that are excluded from the pool of family assets. A one-half interest means having a legal interest in the asset, even though a spouse may not be a registered owner of the asset. A tenancy in common is a way that two or more people can both own something. Someone who is a tenant in common owns a specific share of an asset and can sell his or her share, or use it as collateral for a loan, without needing the permission of the other co-owners.

During a relationship, spouses manage and own their assets as they wish. Some couples own everything together as joint tenants (a joint tenancy is another way that two or more people can own something, and in this kind of co-ownership each owner owns the whole asset and can't dispose of his or her share without the consent of the other owners), others each own their own property, and others arrange for a particular spouse to own all of the assets to protect the property from creditors and lawsuits. However, the Family Law Act says that each spouse is entitled to a half interest in the family property, just like the old Family Relations Act said that each spouse is entitled to a half interest in the family assets.

The importance of a triggering event is that when the event happens, each spouse is deemed to receive his or her half interest in the family property, regardless of whether the property is owned by both of them or by one of them alone. Among other things this means that:
  • a spouse who isn't a registered owner of family property gains a legal half interest in that property;
  • if a spouse goes bankrupt after separation, the other spouse still owns his or her share of the family property, including his or her share of any assets that are registered in only the name of the bankrupt spouse;
  • if the spouses own an asset together as joint tenants, the joint tenancy is severed and they now own the asset together as tenants in common; and,
  • if a spouse dies after separation, only half of the family property goes to the dead spouse's estate.
Triggering Events under the Family Relations Act

The implications of the arrangements under the Family Law Act are best understood in comparison to the old Family Relations Act. Under the old law, there were four possible triggering events: the court making a divorce order or annulling a marriage; the spouses executing a separation agreement; or, the court making a declaration that the spouses were unable to reconcile and save their marriage, called a s. 57 declaration.

The thing about all of these triggering events is that you had to do something to get one. Getting a divorce, an annulment or a s. 57 declaration all required you to start a lawsuit, serve your ex and go to court. Getting a separation agreement required you to actually sit down and sign a piece of paper with your ex. Since triggering events weren't automatic, there were cases in which a party failed to get a s. 57 declaration, the most common triggering event, only to see his or her share in the family property disappear into the hands of a creditor or trustee in bankruptcy. Whoops.

The Triggering Event under the Family Law Act

There is now only one triggering event available, the separation of the spouses. The following is s. 81 of the Family Law Act; s-s. (a) sets out the general rule that each spouse is entitled to half of the family property, and s-s. (b) provides the triggering event:
Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6, 
(a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and 
(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.
Of course, separation is something spouses do when they're breaking up; it doesn't require making an agreement or going to court, it is automatic. I expect that separation is also something most spouses do without realizing that a triggering event has just occurred.

The Time Limit on Property Claims

There are some other really important differences between the Family Law Act and the Family Relations Act.

The old act used the definition of "spouse" at s. 1 to set limits on when you could bring a property claim, saying that spouse "means a person ... who applies for an order under this Act within 2 years of the making of an order for dissolution of the person's marriage." Once two years had passed from the date you got divorced or had your marriage annulled, you ceased to be a "spouse" and once that happened:
  • you stopped being a "spouse" entitled to an interest in the family assets under s. 56; and,
  • you stopped being a "spouse" entitled to apply for a share of the family assets under s. 66.
Under s. 3(2) of the Family Law Act, however, once you're a spouse, you're always a spouse. The time limit for making a property claim instead appears at s. 198:
(2) A spouse may start a proceeding for an order under Part 5 to divide property or family debt ... no later than 2 years after,
(a) in the case of spouses who were married, the date
(i) a judgment granting a divorce of the spouses is made, or 
(ii) an order is made declaring the marriage of the spouses to be a nullity, or
(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
The passage of the two-year time limit doesn't mean that you've ceased to be a spouse, it means that you're out of time to apply for certain orders under the act.

Why Spouses' Half Interest in Family Property May Not Expire

Let me summarize where we've gotten to.
  1. Under the Family Law Act, if you are a spouse you're entitled to an equal share in the family property under s. 81(a).
  2. Once you separate, you gain a one-half interest in all of the family property as a tenant in common under s. 81(b), regardless of how the family property was owned before you separated, and regardless of whether you meant to get (or give) a half interest in the family property.
  3. Under s. 198(2), you have two years from the date of separation (unmarried spouses) or divorce (married spouses) to make your claim for an order for your share of the family property, assuming you can't make an agreement about how the family property will be divided.
  4. However, under s. 3(2), once you've qualified as a spouse under the act you are always a spouse for the purposes of the act, regardless of how much time has passed.
So here's the nifty thing. Since a spouse is always a spouse and it's spouses who are entitled to a half interest in the family property, although the passage of the two-year time limit under s. 198(2) may strip a spouse of the right to apply for a share of the family property under the Family Law Act, it won't strip a spouse of his or her one-half tenant in common interest in the family property.

That's huge.

Among other things, this means that other legislation, like the Land Title Act or the Partition of Property Act, and certain principles of the common law, such as the remedies in trust for unjust enrichment, might be used to realize a spouse's interest in family property even after the spouse has lost the ability to apply under the Family Law Act. I note that s. 104 of the act expressly allows for the application of other rules and laws:
(2) The rights under this Part are in addition to and not in substitution for rights under equity or any other law.
Furthermore, the time limits that will apply are the time limits particular to that legislation and to those remedies, not the time limit set out at s. 198(2). Frankly, I don't know whether a tenant in common interest can expire without an agreement or order to that effect, and such an interest might survive to be exercised years down the road or could conceivably form a part of a spouse's estate.

I also wonder whether or not a spouse who is the sole owner of family property could be considered to hold half of the value of that asset in trust for the benefit of the other spouse once the spouses have separated. There are remedies for the wasting of family property — intentionally decreasing its value — after separation set out in s. 95(2)(f), but I expect we'll see case law on this issue develop soon enough as trustees have a fiduciary obligation (a duty) to manage trust property for the benefit of the trust beneficiary.

And now I'll conclude the list I just started.
  1. Even though you can't apply for your share of the family property under the Family Law Act once the time limit at s. 198(2) has passed, under s. 104(2) you may be able to apply for orders about your share of the family property under other legislation and common law principles.
  2. The time limits that will apply to claims under other laws and legal principles are not the time limits set by the Family Law Act, and I'm not certain that, without an order or agreement, there are any time limits to potential claims respecting tenancies in common.
Interestingly, these conclusions are just as important for owning spouses as they are for non-owning spouses. Non-owning spouses get the comfort of knowing that their one-half interest in the family property may not expire even though the limit set out in s. 198(2) has passed. Owning spouses, on the other hand, are warned that they can't let their guard down just because the two-year limit has passed; until we get some case law to clarify the situation, unresolved tenancy in common interests may survive separation and divorce for years if not decades.

03 September 2014

Excellent Child Mental Health Video Series for Family Law Lawyers and Parenting Coordinators

I've just discovered an amazingly useful cache of videos from Alberta Human Services on children's mental health issues. The nine videos are recordings of the lectures presented in part one of their Children's Mental Health Series and are presented by a variety of psychologists, social workers and other professionals, and cover topics including:
The lecture series is aimed at professionals as well as caregivers and families, and is presented in generally accessible language as a result. After the usual housekeeping and introductory presentations, which frankly could have been edited out with no loss of content or quality, the lectures run for about an hour to an hour and a quarter. Each video includes a powerpoint presentation which can be downloaded separately, and a list of links to related online resources.

These videos will provide a helpful supplement to the knowledge base of anyone working as a parenting coordinator or providing non-evaluative views of the child reports, as well as family law lawyers whose practice includes an emphasis on children, mediation or collaborative settlement processes. They make an excellent companion to the animated video on children's brain development and reactions to stress provided by the Alberta Family Wellness Initiative that I have written about previously.

Part two of the Children's Mental Health Series will emphasize the adolescent brain and mental health and wellness challenges for youth and begins soon. You can get more information about the series and register through the website of the Alberta Centre for Child, Family and Community Research.