07/16/2012 05:44 EDT | Updated 09/15/2012 05:12 EDT

The Divorce Law Biz Is Booming And Here's Why

We are marrying less. Our divorce rate continues to climb (notwithstanding Statistics Canada's claims to the contrary). What's going on? In my 35th year of practice, I am witnessing what I believe to be a tidal wave of change in our views and attitudes towards marriage and divorce.


We are marrying less. In court I continually see relationships breaking down. What's going on?

One of the perks of practising family law is that it allows you to experience social change first hand.

In my 35th year of practice, I am witnessing what I believe to be a tidal wave of change in our views and attitudes towards marriage and divorce.

As a young child growing up, I and my peers knew little of divorce. When confronted in my Grade 6 class with another student upset over his parents' recently-announced plans to separate and divorce, our teacher was called upon to patiently explain to the class just what a divorce was.

Fast-forward to today's youth and the thought of such a naïve reaction to divorce is laughable. Our youth live in a disposable environment: break a camera, fix it. If not, throw it out and buy a new one. Break a relationship (marriage), try to fix it. If not, throw it out and start again.

In this world our youth are all too well aware of the cost and consequence of divorce. Hence the growing aversion to marriage. Not an aversion to relationships, the biological and social motivations still exist, but young people today are becoming more and more risk averse.

They see a common law relationship as less fraught with breakdown consequences. To some extent, they are correct. Notwithstanding popular misconceptions and notwithstanding legislative and jurisprudential moves blurring the differences between formal marriage and common law relationships, there still exist legal differences.

For example, regardless of how long you co-habit and regardless of whether you have children together, common law partners do not acquire property rights under provincial or federal legislation in Canada.

While support rights may mirror that of married couples, common law partners' property rights are governed either by ownership or by complex trust and equitable claims which are less inclusive and much harder (and expensive) to assert. The province of Quebec is likely in the vanguard of common law relationships where the majority of new relationships are common law rather than married. The Quebec Civil Code and its treatment of married couples' property and support rights contributes largely to this phenomenon.

Even within the common law relationship, family lawyers have seen an increase in the use of domestic contracts executed either before or early in the union with a view to dulling and expediting the consequences of break-up. Common law spouses increasingly use cohabitation agreements to achieve this purpose and I expect that their use will increase.

When I was young people expected their marriages (relationships) to last. Hence the use of marriage contracts (aka pre-nups) was limited to the rich and famous. Today, our disposable-minded youth know this not to be so and increasingly plan for the (almost) inevitable.

I believe that we will continue to see the rise in our divorce rate together with an increase in the number of couples (opposite and same sex) choosing common law rather than married status.

Notwithstanding the fact that Statistics Canada claims that the divorce rate is dropping, the rate of relationship break-up continues to rise. StatsCan only records marriage break-ups that result in divorce. They do not record the rate of the breakdown of common law relationships or even the breakdown of marital relationships where neither party seeks divorce.

This trend will only accelerate the disposable aspect of relationships. What that means from a sociological context is better left to those who study such trends rather than this labourer in the fields of marital discord.