Mary had been with her partner for more than 10 years.
Recently, the pair split.
Although the couple had never been formally married and hadn’t signed any pre-nuptial agreement, Mary (not her real name) assumed they were common-law.
She was wrong.
In the Yukon, legislation recognizing the rights of common-law couples doesn’t exist.
When it came time to divide their property, Mary looked into what protection she had under the Family Property and Support Act.
She was out of luck.
The act defines “spouse” as “either a man and a woman who are married to each other, or who are married to each other by a form of marriage that is voidable and has not been voided by a judgment or nullity.”
Most people assume common-law is recognized when dividing up family property, said NDP leader Todd Hardy on Thursday.
“But it’s not.
“And in a break-up, one or the other is going to benefit from it not being there.”
Historically, it’s women who are most affected, he added.
The courts usually rule in favour of the man as breadwinner when it comes to property redistribution.
For Mary, it could wind up being quite ugly, said Hardy.
And there’s more than one hole in this legislation, he added.
The act clearly defines “spouse” as a man and a woman.
Gay and lesbian marriage is completely outside the law.
In a divorce, homosexual couples face the same issues as heterosexual couples, said NDP MLA Steve Cardiff.
“And there is no protection for them either.”
It’s upsetting on two counts, said Yukon Gay and Lesbian Alliance president Stephen Dunbar-Edge.
“As a gay person it certainly doesn’t impress me too much that the government doesn’t recognize the fact that one law will affect another,” he said from his office on Thursday.
“How difficult is it to change legislation that already has precedence in other places?”
It’s not difficult at all, said Hardy.
There’s been an amendment to the Family Property and Support Act kicking around since 1998.
The amendment redefines “spouse,” changing the wording from “a man and a woman,” to “persons.”
It also solves the common-law dilemma, adding, “cohabitation as a couple for at least 12 continuous months,” to the act’s definition of marriage.
Already passed by the legislature, the amendment is ready to go.
“All it would take is an Order in Council,” said Hardy.
“They could change the act tomorrow.”
“This is in the process of now being reviewed,” said Justice Minister Marion Horne, struggling in legislature on Thursday (see related story on page 5).
This government isn’t doing its legislative work, said Hardy.
“Legislation is not being brought up to what the current laws are federally.”
As a taxpayer, Dunbar-Edge is concerned legislation is not being kept current.
“This means legal action could happen because someone is put out by this government’s lack of action,” he said.
“By being reactive, instead of proactive, they could cost the taxpayers a lot of money.”
This government just hasn’t kept up with the times, added Dunbar-Edge, citing the territory’s out-of-date children’s act.
Mary is in for a long ride, said Hardy.
“It’s this kind of thing that causes a lot of added hardship in separation.
“People will be forced to hire lawyers and end up in court.
“But the act is supposed to mitigate some of this stuff and put in place a code of conduct.”
“These things not only cause undue hardship to the citizens, they end up costing the government more money in the long run,” added Dunbar-Edge.
Horne refused to comment on the issue.