THE ADVOCATE 505
VOL. 76 PART 4 JULY 2018
simple, and depending upon their level of legal awareness, they might not
even be aware that they are a spouse until their co-habiting partner takes
legal action against them for child support or a share of family assets. Just
like ostensibly married persons who seek to have their marriage declared
void ab initio, these persons can challenge in court the very claim that they
are a “spouse” and, depending upon the circumstances, a judge might agree
with them. So why is family law not taught this way? A person’s status as a
spouse is what matters foremost. As a geographical rule, the same family
law rights and obligations arise in Canada when a person becomes a spouse
either from a marriage ceremony or from particular social circumstances.
What light the common law sheds on this situation might surprise some
lawyers and educators alike. In 2007 Frankel J.A. observed:
As Mr. Justice Cumming noted at the outset of Keddie v. Currie, the
terms “common law marriage”, “common law relationship”, and “common
law union” are sometimes confused and used with imprecision by
both the general public and the judiciary ...9
In Keddie v. Currie, Cumming J.A. revealed how the expression “common
law marriage” has “relevance to our law today”.10 He showed that formal and
essential requirements for a legally recognizable marriage in England
evolved as a matter of intertwining common law and statute law, with
statute law such as Lord Hardwicke’s Clandestine Marriages Act, 1753 (U.K.),
the Marriage Act, 1823 (U.K.) and the Marriage Act, 1836 (U.K.) gradually
usurping common law terrain. The legal formalities and substance of marriage
in 18th- and 19th-century England had effectively become a matter of
statute law but limited common law exceptions were made, for example, in
cases where immigrants sought to have extra-territorial marriages recognized
or where a domestic formality had not been met.11 In short, a “common
law marriage” in this restricted sense became a legally acceptable but
exceptional type of marriage in England and it remains that way in Canada.
For example, customary Inuit and Cree marriages have been recognized as
valid by Canadian law.12
Thus, Cumming J.A. acknowledged that the “common law marriage”
exceptions that evolved in England could be recognized in Canada, for
example, “in the context of marriages within British Columbia which are
alleged to fall within one of the two requirements for application of the
common law marriage exception (i.e., impossibility of complying with the
local law, or no submission to local law)”.13 Frankel J.A. recently made the
same broad point when he observed that “while capacity is necessary for
a common-law marriage, it does not follow that it is required for a statutorily
created marital equivalent”.14 In 2014 Adair J. reasoned that, because