The Supreme Court of Canada has affirmed Quebec’s right to forge its own path in defining the mutual rights and obligations of unmarried spouses. Laws that do not impose duties of spousal support or the sharing of family property are not, said a majority of the justices, discriminatory.

By Angela Campbell

The Globe and Mail (January 25, 2013)

Many feminists will lament this outcome, and view it as a major setback in the struggle to ensure that women are not prejudiced economically by their civil status. There is, however, another angle through which to assess the court’s decision, which invests it with more promise for women.

The court’s ruling ostensibly detracts from the fact that cohabiting spousal relationships can exhibit the same level of sharing and sacrifice we find in marriage. It also seems to be at odds with unmarried spouses’ powerful social presence in Quebec: they represent more than a third of all couples in the province.

The applicant in this case argued that the law’s extension of comparable rights for married and unmarried spouses is consistent with the principle of gender equality. Her claim is tough to dismiss. Historical and current data reveal the adverse economic consequences for women of ending a marriage, or marriage-like relationship. They often come out far behind men in terms of property, finances and future income-earning prospects. The fact that legal redress remains beyond the reach of Quebec’s unmarried women may be cause for concern.

Yet it remains a mistake to interpret the Supreme Court’s judgment as an unequivocal loss for the women of Quebec. More to the point, we should ask ourselves how comfortable we are stretching the obligations that attend marriage to those who have not actively chosen to enter this social institution.

In Quebec, the themes of individual choice and autonomy have been central to discussions on this topic. Even feminist constituencies have invoked these ideas in pressuring the government not to reform the law to extend married spouses’ mutual duties to unmarried couples.

Equalizing marriage and cohabitation will not always benefit women. While it may seem like a feminist move to do so, it could have important unintended effects.

Consider a self-made, accomplished woman who’s decided against marrying her spouse, in order to protect her economic interests. She is likely to object strongly to being compelled by the law to share her assets or to support her spouse at the end of the relationship.

And it is not just professional, wealthy women who might find that the Supreme Court’s judgment protects their interests. Plenty of working class women are their families’ only or primary breadwinners. They may have spouses who are hardworking, but earn less. Or they may have spouses who are deliberately under-employed or unemployed. Some women have spouses with undeclared or untraceable income, making it look like they earn less, and need more, than they actually do. Skeptics might consider evidence across Canada related to tracking recalcitrant child support payers’ income.

Women in Quebec who find themselves in these circumstances are shielded from spousal claims for support or property sharing if they are unmarried. They are also immune to proceedings that would require them to share any debts their spouses accrued over their relationship. Most of these women would be relieved to know that the ground rules remain unchanged.

The Supreme Court’s decision might not reflect an accurate picture of modern families in Quebec. It might also prompt us to think about whether legislative action is now needed to protect spouses and children who are at risk of economic deprivation when spousal cohabitation ends. Just the same, we must be cautious about drawing quick assessments of this judgment as unequivocally detrimental to the interests of all women.

Angela Campbell is a law professor at McGill University.

This article was originally published in The Globe and Mail, on Friday, Jan. 25 2013.