View Single Post
Old 11-17-2012, 07:04 AM
TroubledTigress TroubledTigress is offline
Join Date: Nov 2012
Location: Canada
Posts: 10

Ah ok, thank you for answering the questions, and I was confused on the common-law thing because of the fact that the laws were recently changed last year. And well, things were changed to only prohibit people to have legal marriages with ceremonies, but as I don't have a legal mind I wasn't sure if I was missing something. I think I'm mostly confused because of information such as this;

The judge interpreted Canada’s criminal law against polygamy narrowly so that it only criminalizes non-monogamous relationships that are a) institutionalized b) marriages. The law, he said, protects the “institution of monogamous marriage”. He concluded that the law does not apply to non-monogamous relationships in general.

Of the two terms “institutionalized” and “marriage” the former is the most important, not only because it narrows the second term, but also because the concept of “institutionalized” is clearer than the concept of “marriage”.

The judge discussed three types of institutionalized marriage, and they give a guide to what he means by “institutionalized”.

The first type is the institution of two-person heterosexual marriage. As the judge discussed, that institution has thousands of years of cultural practice behind it and in Canada 150 years of formal legal definition and sanction. It is clearly an institution.

As to the key elements of that institution the evidence suggests these things:

1) marriage has a community dimension because the marriage affects the wider community and not just the parties to the marriage;

2) the community must in some way formally sanction the marriage through an authority structure;

3) some form of marriage registration must occur so the community can determine a marriage has taken place;

4) the public nature of the ceremony is in part designed to tell others that the parties to the marriage are off-limits for sexual purposes;

5) because the marriage affects the wider community the terms of the marriage cannot be renegotiated by the parties themselves;

6) the parties to a marriage cannot dissolve it themselves; dissolution requires another public ceremony or involvement of third parties (from paragraphs 227, 1020, 1037-1042 of the court’s decision).

The formal sanctioning by the Canadian legal system in the last twenty years of a new form of monogamous marriage – homosexual – which the judge also recognized, shows that marriage can be institutionalized by new practices.
Reply With Quote