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Crim 135 - Topic#10 - Family Law

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CRIM 135
Graeme Bowbrick

TOPIC #10 – FAMILY LAW I. CONSTITUTIONAL RESPONSIBILITIES Federal Jurisdiction: s.91(26)  S 91 (26) of 1967, authorize fed to define marriage and divorce Provincial Jurisdiction: s.92(12) & 92(13)  92(12) Solemnization of marriage “process of marriage”, marriage license, marriage certificate  92(13) property and civil rights – all property within the province & all private law issues. o Child support, child custody, family support, guardianship of those who are mentally incompetent/elders, child protection matters, adoption II. MARRIAGE AND DIVORCE 1. Marriage definition: the Civil Marriage Act  Did not exercise power – allow definition from common law – union of one man and one woman to the exclusion of all others  Until 2005, parliament change to “lawful union any two people to the exclusion of all others” – allow same sex marriage 2. Divorce (a) Introduction  Marriage is a distinct legal status- has to go through legal process  Thus to become unmarried, must also go through formal legal process  Requirements set out in the Divorce Act – “grounds” for divorce – must meet these requirements (b) History (i) Pre-1968 o Divorce is relatively rare (compare to today) o fairly difficult to obtain - eg a bill go through parliament to authorize – go through all legislative process and be approved by parliament – thus expensive, require connection, not easily accessible (ii) 1968 Reforms o fed parliament passed first Divorce Act o can be obtained from any superior court instead of parliament o specify number of grounds: (must satisfy at least one)  adultery  rape (one rape another)  bigamy (married to multiple people)  physical/mental cruelty (abuse)  imprisonment  drug addiction  failure to consummate (no sex ever)  bestiality o all are “fault based grounds” – blame the other spouse o no fault based – living separate in 5 years  2/3 fault based, 1/3 no fault (iii) 1985 Reforms o Became no fault divorce system o Grounds for Divorce Today  (i) Living “Separate and Apart” for 1 Year  vast majority, 99% - because people value privacy, don‟t need to point fingers  (ii) Adultery - Rarely used - privacy  (iii) Mental or Physical Cruelty III. “COMMON LAW” RELATIONSHIPS 1. Definition  no such legal status – just legal recognition of people who are in „marriage like‟ status  Marriage like status is when they have shared responsibilities – share home, cost, ownership of car, sexual intimacy (thus roommates does not count)  Specific rights and responsibilities attached when common law o Child support, spousal support and division of property and debts – only matters upon relationship breakdown New Family Law Act in BC  rights and responsibilities attached to “spouses” – are you a „spouse‟? definition: o 1) legally married o 2) lived together in a marriage like relationship for at least 2 years o 3) who have child together and lived tgt in marriage like relationship for any period of time 2. Legal Repercussions of “Common Law” Relationships  Benefits that can be obtained (pensions, tax, etc) - All Canadian jurisdiction makes no distinction  Relationship breakdown – different responsibilities and division of property – key is are you a spouse? Law does not care how you become a spouse  Common law – need no formal process to end– move out IV. LEGAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN 1. Spousal Support (a) Concept  Relationship breakdown shouldn‟t allow one spouse be much worse off than another (especially financially)  More well off spouse have to pay financial support for some period of time, or rest of life, depends economic dependence on the rising of ending of relationship o Weighs benefits and sacrifice from relationship (b) Divorce Act vs. Family Law Act  Can seek spousal support under either act – getting a legal divorce – divorce act  Legally married but not getting legal divorce, or not legally married in the first place – use family law act  You can claim IF You are legally defined as spouse (c) Legal Principles  Take into economic circumstances (strictly) of each spouse  Is one worse off BECAUSE of the relationship?? o Length of relationship? Longer = Greater the chance of economic dependence o Functions performed by each spouse during the rel
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