Common Law Marriage in the Canadian Forces - Mega Thread

[DAA]

Yes, I have seen such cases rejected but at the "CO" level.  Then on request from the member subsequently staffed to the AJAG for legal review.

As you don't go into detail regarding your "living" arrangements, it is hard to say just what the "actual" basis for rejection is and I would only be able to speculate at this point but I do have some ideas as to why.

 

[armywife2013]

We'd love for nothing more than to make it legal and get married, but I was previously married. I applied for and got granted a divorce, but I won't get the divorce certificate until at least June, and you need the divorce certificate when you go to the courthouse to apply for a marriage license. So common-law was the only available option.

 

[Old Sweat]

Strange as it sounds, have you considered going to a chaplain? One may be able to negotiate/work out a solution, or at least get your case reconsidered.

 

[armywife2013]

No, we hadn't considered a chaplain. I'll discuss it with him tonight and see if we can go and talk to him.

As for the living arrangement/situation: We're in the exact same situation as the court martial case we quoted. He's an OCdt, pays rations and quarters at RMC. I own a house, and he slept at my house every night for over a year. I pay the mortgage but he contributes what he can in terms of utilities/groceries/maintenance of the house. He has been up-front with his chain of command about the fact that he doesn't sleep or eat his evening meal at RMC (and it was recorded every day in the "sign out book"), and they had no issue with it. I have tried to find a definition of "living together" in regulations or the military administrative law manual but there is nothing I can find.

 

[BinRat55]

QR&O 1.075 - COMMON-LAW PARTNER AND COMMON-LAW PARTNERSHIP

(1) This article applies to all regulations, orders and instructions issued to the Canadian Forces under the National Defence Act.

2) The definitions in this paragraph apply in this article.

"common-law partner", in relation to an officer or non-commissioned member, means a person who has been cohabiting with the member in a conjugal relationship

Etc, etc... and then:

4) For greater certainty, a common-law partnership does not end solely because the officer or non-commissioned member and the common-law partner are living separately for military reasons.

Stress on "military reasons..."

 

[Eye In The Sky]

I have tried to find a definition of "living together" in regulations or the military administrative law manual but there is nothing I can find.

CF Mil Admin Law Manual, Chap 27.  Section 3. 

 

[BinRat55]

BUT:

Beware this - CANFORGEN 008/11 CMP 002/11 191815Z JAN 11

1. THIS CANFORGEN IS PROMULGATED TO CLARIFY THE CF COMMON LAW PARTNERSHIP (CLP) POLICY. CLPS ARE RECOGNIZED BY THE CF FOR THE PURPOSE OF GAINING ACCESS TO ALLOWANCES AND BENEFITS.

Etc, etc... and then:

2. THE REGULATIONS GOVERNING CLP (REFS A TO C) CLEARLY STATE THAT COHABITATION IS A MANDATORY CRITERION THAT MUST BE SATISFIED IN ORDER FOR CLP TO BE RECOGNIZED BY THE CF. IT HAS BECOME APPARENT THAT CLP IS BEING RECOGNIZED FOR SOME CF MEMBERS WHO HAVE BEEN IN A CONJUGAL RELATIONSHIP FOR AT LEAST 12 MONTHS, BUT WHO ARE NOT COHABITING (I.E., THEY ARE PHYSICALLY APART) AT THE 12-MONTH MARK. IAW REF B, PARA 4.2, CLP SHALL ONLY BE RECOGNIZED AT THE 12-MONTH MARK IF THE CF MEMBER AND PARTNER ARE PHYSICALLY COHABITING. IF THEY ARE EXPERIENCING AN INTERRUPTION THAT SPANS THE 12-MONTH MARK, THEY MUST RESUME COHABITATION FOR THE CLP TO BE RECOGNIZED. A CLP SHALL NOT BE RECOGNIZED DURING THE INTERRUPTION OF COHABITATION, THAT IS TO SAY, WHEN THE COUPLE IS NOT PHYSICALLY LIVING TOGETHER, REGARDLESS OF THE REASON FOR THE INTERRUPTION.

Stress on "regardless of the reason for the interruption..."

Sorry!!

 

[captloadie]

I believe the issue you are running into is there is a difference in his CoC "being aware" that he was doing this, and he having actually sought out permission to do so. Had he submitted a memo requesting to live off campus grounds? Does he have anything official with your shared homes address on it (driver's license, lease/rent agreement, utilities bills)? Any of these would be hard evidence of cohabitation. If not, then, from the military's point of view, his place of residence was his room on the college. 

 

[BinRat55]

... Had he submitted a memo requesting to live off campus grounds? Does he have anything official with your shared homes address on it (driver's license, lease/rent agreement, utilities bills)? Any of these would be hard evidence of cohabitation. If not, then, from the military's point of view, his place of residence was his room on the college.

This is a VERY good point...  Was "OCdt Bloggins" single and alone upon entrance to RMC?

 

[armywife2013]

His name is on the deed of the house and his driver liscence lists our address. He was single when he started at RMC

 

[BinRat55]

His name is on the deed of the house and his driver liscence lists our address.

This is a good thing...

 

[BinRat55]

He was single when he started at RMC

This, however, may prove to be an issue if nar memo was produced...

 

[DAA]

Exactly as I thought.  Because you did not "establish" cohabitation, you do not meet the conditions for being granted Common-Law status.

As mentioned above, had he submitted a request to "live off campus" and that request were to have been granted, then you now have a "starting point" for establishing co-habitation.  Even though you have clearly demonstrated the relationship aspects of holding each other out to be "husband and wife" and have documents in each others names, the co-habitation thing will trump you everytime.

The last level of review is the AJAG and I don't think you have any recourse other than him submitting a Grievance, which will more than likely be turned down by the IA (his CO), in which case it would have to go to the CDS and that can take quite awhile.

 

[jwtg]

Exactly as I thought.  Because you did not "establish" cohabitation, you do not meet the conditions for being granted Common-Law status.

As mentioned above, had he submitted a request to "live off campus" and that request were to have been granted, then you now have a "starting point" for establishing co-habitation.  Even though you have clearly demonstrated the relationship aspects of holding each other out to be "husband and wife" and have documents in each others names, the co-habitation thing will trump you everytime.

The last level of review is the AJAG and I don't think you have any recourse other than him submitting a Grievance, which will more than likely be turned down by the IA (his CO), in which case it would have to go to the CDS and that can take quite awhile.

It isn't very common for these requests to be granted at RMC. 

 

[armywife2013]

As of this year its impossible for these requests to be granted at RMC. The live-off program was cut, so even cadets who are married have to live-on. Only exceptions are for those with kids and Otter squadron.

 

[Eye In The Sky]

The last level of review is the AJAG and I don't think you have any recourse other than him submitting a Grievance, which will more than likely be turned down by the IA (his CO), in which case it would have to go to the CDS and that can take quite awhile.

Actually if AJAG was the decision-maker, I don't think the CO would be the IA; can a CO overturn a AJAG decision?  I could be wrong but it just doesn't strike me as the 'appropriate' IA and I am doubtful a CO would take it on willingly, assuming the "AJAG" level it was decided on was way above the ULA lvl.  That is just my WAG though, perhaps FJAG or someone will wander thru here for some perspective from that world.  I'd be interested to see who DGCFGA assigned as IA though, and if it went to FA lvl, would it be a CFGB referral (discretionary).

Fully agree on griev timeline, especially for one that is going to likely *go the distance*.  I'd suggest you are looking at about an 18 month timeline, assuming no major speedbumps or quick resolution.  :2c:

 

[DAA]

As of this year its impossible for these requests to be granted at RMC. The live-off program was cut, so even cadets who are married have to live-on. Only exceptions are for those with kids and Otter squadron.

So you now need to have a serious discussion and decide what you want to do, as you mentioned that he is leaving shortly.

Also, because of the AJAG ruling, you cannot try and claim Common-Law at a later date because you still have the cohabitation problem.  There are also other administrative issues down the road which may come up if the two of you do decide to get married after he is posted, which I am inclined not to mention as these should not form part of your discussions.

 

[DAA]

Actually if AJAG was the decision-maker, I don't think the CO would be the IA; can a CO overturn a AJAG decision?  I could be wrong but it just doesn't strike me as the 'appropriate' IA and I am doubtful a CO would take it on willingly, assuming the "AJAG" level it was decided on was way above the ULA lvl.  That is just my WAG though, perhaps FJAG or someone will wander thru here for some perspective from that world.  I'd be interested to see who DGCFGA assigned as IA though, and if it went to FA lvl, would it be a CFGB referral (discretionary).

Fully agree on griev timeline, especially for one that is going to likely *go the distance*.  I'd suggest you are looking at about an 18 month timeline, assuming no major speedbumps or quick resolution.  :2c:

The approving authority for CL Status is the members Commanding Officer.  The AJAG is merely the consultant in this case and has provided legal advice to the CO on which to allow him to make a decision.  So it is "technically" not the AJAG that turned this down, it is the CO who denied the request based on the AJAG's advice.

The CO would, in my opinion, therefore be the IA and the legal advice would form part of the file which would be forwarded to the CDS for final review, shoudl the member choose to grieve it.

I would have to take a closer look at the Grievance regulations as it is entirely possible that the IA may very well be the next level above the CO or whom ever it was that denied the request.

 

[Eye In The Sky]

Ack!  I misread or misunderstood; I thought the CO had approved and *after* that, AJAG denied.

 

[armywife2013]

We're aware of the issues that would arise if we got married once he's posted out... that we would have "chosen" to "start" our relationship when we're separated and while he's paying rations and quarters, that we'd have to continue to be separated and pay out quarters until his next posting.