Yes, "the inability to marry cannot be an absolute requirement", but read the rest of what you quoted. This couple is
already living together in a common-law partnership. They do not meet the qualification to apply as conjugal partners because they are not in a situation of not being able to marry or live together because of fear of persecution or an immigration barrier that prevents them from cohabitating! If they ask to be assessed in the conjugal partner category, the application would be refused because they don't meet the qualification. CIC won't just say, "Oh, wait, you should be applying as common-law partners" - they'd just refuse it.
The conjugal partner category is, essentially for lack of a better explanation, a
sub-section of the common-law qualification wherein the requirement to co-habitate for at least one year is waived, and partners are assessed as common-law even though they have not been able to co-habitate. This is so as not to discriminate against partners who would ordinarily marry, or live together for the required year to be qualified as common-law, but who are unable to do so
"because of an immigration impediment or other serious barrier". From Section 5.45 of the
OP2 Processing Manual:
A conjugal partner is not a common-law partner under Canadian law until the one-year cohabitation requirement has been met. Applicants should be counselled that they and their partner will not be considered to be in a common-law relationship for purposes of other federal benefits and obligations until they have lived together in Canada in a conjugal relationship for at least one year. The applicant's Confirmation of Permanent Residence form will not indicate their marital status as “conjugal partner” since this relationship is not legally recognized in Canada beyond the IRPA.
You also have this little gem that applies to this situation:
The conjugal partner category applies only to the family class and only to a foreign national sponsored by a Canadian citizen or permanent resident living in Canada. This category does not apply to the spouse or common-law partner in Canada class as the exception would not be required in Canada.
Read through Sections 5.44 to 5.47 of OP2 - it makes their position very clear. People who can apply as conjugal partners would include a same-s*x couple where the foreign national is from a non-visa-exempt country where people are persecuted for their s*xual preferences, and the FN has been refused a visitor visa to Canada so the couple cannot live together or marry in Canada. A couple could also qualify as conjugal partners if the FN was from the Philippines and married there, where divorce is not legal. This FN has been refused a visit visa to come to Canada, and the Canadian partner has also been refused a visa to go to the Phils and live there for long enough to establish a common-law partnership - so they have been prevented from marrying due to the fact that the FN cannot get divorced, and they are prevented from living together to establish a common-law partnership because they cannot get permission to stay in each other's country for long enough. But a US/Canada couple - for example - who cannot marry because one of them is not yet divorced, will be refused as conjugal partners because there is no immigration impediment that keeps them from living together for long enough to establish a common-law partnership . . . even if it's six months in one country and six months in the other. CIC does not care if both partners suffer financial hardship or have to leave children or family members in order to facilitate the common-law qualification. IF they don't want to do that, they can wait to marry. Even same-s*x partners can now marry in Canada, so there are very few (if any) visa-exempt couples who would qualify in the conjugal partner classification.
This thread details the example of a successful conjugal partner application.
