Marriage and Family law
Family is seen as the most fundamental social unit. Average people are
usually farmers. Even the economy is based on a family of workable people
who procreate, learn and teach their children to learn and socialize with them.
Marriage is the only family law at this time. It was considered unacceptable to
form any other marriage other than Christian to Christian
Marriage was a law used to regulate and ensure social stability
Having originated in the Roman Catholic Church, marriage was made a
sacrament - a bond between people made by God
Divorce was no longer a possibility - until death do them part. No court could
Britain and France both copied this sacrament in its law. There is no divorce
and this emulated to what the Church put in place.
For a marriage to be legal it had to be conducted by a member of the Anglican
Church especially in England. The Church is starting registration of marriages
by the state and other paperwork had to be done at the marriage registry.
Simple laws still apply such as no divorce, and consent is required of both
The number of Churches had broken out (subsections of Christianity) -
Anglicans broke off from Roman Catholic Church but a lot of the theology
was still the same.
A process was developed where one would go to the parliament/house of lords
and request a divorce by your own statute. The parliament could grant this as
an act of parliament only if the grounds for divorce was adultery.
You had to have connections and a lot of money and be an economic elite.
You needed lawyers and basically have had to create your own act.
o This is because they reinforced the marital bond since the workability
of a family overthrew any other reason why it was failing as a
workable family is important to society.
In France, all the Church rules were adopted. You needed to have a witness
and marriage was performed by clergy.
In France, you could et a separation. You could get a ruling and only the
woman could apply for it. At this point the wife is the property of the
husband. The husband controls all the wealth that was brought in and what
they made together. The husband is in control so he will not make the decision
that she will.
o Wife will prove through insanity/alcoholism that he is squandering the
family‟s property. This way she can take back the property she got
o Bed and board - unable to fulfill the role as the head of the family and
the wife can leave the house
o **They are only separated but still married until one of them dies as
this is decided by God and cannot be dissolved by Man. Essentially when a woman got married she holds no rights/standing. She
becomes a child almost and the husband assumes all rights. Their property
beomes the same “community” or “family property”
Patriarchal and authoritarian - Father/Husband is in full control. Everything
about the family is controlled by the father.
o Controls discipline - legally allowed to beat his wife.
o Children are considered his so the wife holds no say in it.
We are currently living in an egalitarian unit
European Law and legal Practice in North American Colonies 1600-1800
Foundational time period - there was a lot of warfare and there aren‟t a lot of
laws or change that is added during this time.
Because of the warfare - mainly of the colonies don‟t make a lot of progress
due to the disruption they experience
o Blue - French controlled areas. Slide 2 date 1750
French lose to Britain in 1763
English Criminal Law & Nova Scotia
British gave their colonies elected legislature
It makes sense to let colonies take care of some of their own business -
“Little bit of self-governing”
1749 - Nova Scotia receives English law - court admin, tax collection, taxes
etc. The first French settlement was in Nova Scotia.
A lot of fighting occurred through Nova Scotia. It does not have a legislature
as such - just receives a general laws from France
Recieves Criminal law from England and the main purpose was for deterrence
and revenge. It shows the strength and power of the Crown. Stops people from
even considering going against the law “done for social order”. 160 capital
crimes - execution
Nova Scotia has very isolated areas at this time. It is hard to establish courts in
rural areas as they try to improve road systems. The courts move around in
little circuits so this is why roads were so important
A lot of the travelling was done during Winter since it is easier to get out on
the snow sled than use a buggy over the horrible roads.
Social control must be established - so there is an investment in the roads.
After 1758, they don‟t have to accept every new English law. The legislature
decides if they will copy the law or not unless it is a military policy in which
case they have no choice there.
“Treason and Felonies act” - overriding the British laws (1758). They make
only 171 capital punishments unlike the 16 that are present in British law. 14
of them include treason, rape, infanticide, property crime, murder, maiming,
ausotomy (anal sex), buggery (capital punishment)
Why is ausotomy so serious - to stop homosexuality
o Violation of acceptable sexual behavior o Sexual acts are supposed to be directed towards procreation - anal sex
does not achieve that
Nova Scotia reduces capital punishment significantly. There are no standing
armies, court system is limited, no jails - so why are capital punishments so
Adultery is removed from capital offences, polygamy, incest - they receive a
whipping but no capital punishment.
Between 1759-1800, all capital charges, 89% of them only for 5 offences -
murder, infanticide, rape, buggery and robbery. Ther other 9 offences are not
being used. A lot of people were charged with a lesser charge
Martha Welch - pick pocketed a man but she was charged with arson. They
rejected the death penalty and they avoided it.
Malicious breaking a dyke to cause flooding, looting at the scene of a fire was
added to capital punishment. Fires are very common at this time - everything
built of wood, there was no fire department.
Nova Scotia &Marriage/Divorce Law
Act considering “Marriages and Divorces”
o It provided for divorce in Nova Scotia. No law in Britain for a divorce
which creates courts allowing people to actually be heard.
Grounds for divorce are fairly wide in Nova Scotia - adultery, desertion for 3
years, cruelty (physical), inability to have sexual relations, bigamy,
consanguinity within prohibited degrees - too closely related by blood
**Significant variation from Britain. There was a case in 1750 where a man
wanted divorce because his wife was accused of adultery. Britain came and
disallowed it. No divorce under the English law - only separation.
The colony was under a fairly early stage - economy was based on fairly new
- sea faring economy. Timber or Fish
It is easy for men to desert their wives in Nova Scotia. You did not know if
your husband died - dangerous professions. If husband deserted you for 3
years, you were considered divorced and thus could re-marry.
Rejected the idea of divorce and destabilizing. People needed to procreate so
it allowed women to find someone else and have a successful marriage
Nova Scotia allowed subsects of religious minorities to enter. The
puritans/quakers did not believe marriage was a sacrament. They believed
marriage was a contract. Puritans - they would break a marriage if it was not
working and allow another marriage to take place in order to make it
successful so that there can be societal and economic growth.
Nova Scotia was the first colony that French ruled
They could either adopt British laws and rules and in some instances, make
their own laws
Deviation in laws - divorce laws not allowed in Britain but are slowly
deviating to accept divorce.
Deviating from British culture and values Strong condemnation (immorality) against British society. Very critical
against British immoral society especially the elite
More pure and adherent to Christian moral principles
Embracing the concepts of marriage and believed that divorce would stabilize
Nova Scotia and a few other cities under British rule feel British are
Anglican Church holds marriage as a sacrament but in Britain, there is a
parliamentary way of getting a divorce only for the elite.
New Brunswick copies Nova Scotia in 1791 introducing it‟s own divorce act
and in British rule in 1791.
o More than just adultery, includes consanguinity within the degrees
prohibited (too closely blood related), inability to have children - does
not include cruelty however.
o Cruelty is a ground used by women
PEI (British colony) - agricultural community influenced by Nova Scotia‟s
liberal context and copies divorce act in 1835
Marriage and Family Law in New France (Quebec)
Eventually will fall under British
Follows the French Civil Law (coutume of paris) imposed on New France in
Colony of France
Similar in terms of it‟s marriage and family law from France and New France
Marriage is still the foundation of family and marriage laws in France and
Quebec are the same
o Roman Catholic Canon law, marriage is a sacrament, no divorce laws,
indissoluble so no secular means can end the marriage
Regulation of family:
o British common law and French Civil code held married woman status
inferior to men - doctrine of marital unity
o Husband and wife were one person at the time of marriage - that
person was the husband
o At the time of marriage, person and materials are subsumed into the
husband so the husband controls everything
o A woman may be able to go to court as a witness in certain
circumstances (if raped), hence has a small legal presence. However,
her husband would accompany her because rape would be violation
against the husband since he owns her and his property is damaged.
o Financially, under property law - husband assumes all “community of
property” under his belt - all the movables and immovable brought
into the marriage and during the marriage is put into this community of
property which is under his control
o Woman has no economic ability and no financial independence. She
can bring inheritance into the marriage but even if she leaves him, she
will not be able to take all her belongings back. o She can in no way be held economically controllable and lacks
o There are some protections - husband has a legal obligation to handle
the community of property in the best capacity of the whole unit.
o Dower right under French law - wife retains the right to use or support
half of the property from widowhood to the time of her death - control