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Common Law Marriage is a Violation of Human Rights

This article is about common law marriage laws in some but not all countries. In many countries, people are eligible to file for common law marriage status after a certain term of living together as spouses. Nothing wrong with that. In others, however, the status of common law marriage is imposed on people living together for a period of time, regardless of whether the people want it or consent to it. This is a violation of human rights as it denies people the right to chose who they are married to. In the country of Colombia, the period is 2 years after which the status of common law marriage (called Civil Union there) is imposed on a couple, carrying with it the full range of legal responsibilities of consensual marriage, including property rights. In the Canadian province of British Columbia, it is a 6-month period, after which this status is imposed on people by the government. Many people are not even aware they have been married legally by their government.

Since this is a clear violation of human rights (in any country that has protection measures for human rights), it seems it would be an interesting, just, and overdue legal action. Since this human rights violation is carried out every day by various governments against their citizens, there is no lack of an opportunity to pursue it.

Properly, legal marriage is when people (by their own volition) file a contract their government for marital status, which includes many legal responsibilities, including property division rights and child care responsibilities. People are entitled to marry anyone they chose by completing this paperwork and filing it with the government. Alternatively, in many countries, a couple who has lived together for a certain period of time is provided an option to file paperwork with their government to obtain common law marriage status, which is a similar contract but allows a government to make up different responsibilities for this separate contract. Just as an example, in Ontario, Canada, a common law marriage and regular marriage have the same responsibilities in terms of child support (only they each use a different act) but the entitlements to division of property after a separation are different.

With the common law marriage status imposition practiced by some governments, however, since it is done without the will of the people involved -- often against their will -- it is hard to understand how this isn't to everyone an obvious violation of human rights, as well as civil (Constitutional or Charter) rights in nations that have those protections against the government.

Against human rights

Most countries are signatories of the UN Declaration of Human Rights. The U.S. and Canada were among the 48 countries first to sign the document in 1948. Colombia signed it in 1966.

Article 3 contains protection for "fundamental human rights" - life, liberty and security of person. It's hard to see how choice of marriage wouldn't fall under fundamental rights of life and liberty. The document also specifically treats marriage in article 16, where it states, "Marriage shall be entered into only with the free and full consent of the intending spouses."

UNCHR has taken action against forced marriages in several countries, but seemingly has not recognized that imposition of marriage status without consent or against the will of people by the governments of Canada etc. is the same thing as forced marriage by parents in Romania or Malawi. Between forced arranged marriages as violations of individual rights and forced common law marriage, there are similarities and distinctions. Forced arranged marriages involve both the choice of a partner by someone else than the individual married AND the imposition of an involuntary state of marriage upon them. Forced common law marriages have an imposed involuntary state of marriage to a partner chosen by the individual for a relationship, although not chosen for marriage.

Against civil rights

The Fifth Amendment of the Constitution (U.S.) and Section 7 of the Charter (Canada) protect the right to individual autonomy and personal legal rights from actions of the government.

The language used is "life, liberty, or property" in the Constitution and "life, liberty and security of person" in the Charter.

The right violated by a government-imposed involuntary state or marriage would be that of liberty, which has in law been interpreted to include the power to make important personal choices. Marriage (by any name, and including a legally-binding state of shared assets), is an important personal choice, and therefore governments with these restrictions cannot compel it without infringing civil rights.

NOTE: Legal scholars in North America make a distinction when it comes to "family law" in that civil protections may protect against the government but not against family members. Therefore, Section 7 of the Canadian Charter of Rights and Freedoms, for example, may not protect a "family member" from another where it would protect an "individual" from the government, some have argued. This doesn't affect the discussion at hand, though, because it would have to be applied ex post facto to the imposition of "family member" status on individuals.

NOTE 2: It doesn't seem relevant that people bound as spouses this way are not called by government "married" since they are treated as though they were married. In other words, there is no difference except the word.

Discussion here:

I also debated it on Reddit's ChangeMyView:

Some people on discussion forums were doubting that this even happened. Article on Canadian example:

(This article was originally published many years ago. Just updating it now and moving it from the old version of this website to this new version.)

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