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Marriage and Divorce Laws.docx

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University of Waterloo
HIST 277
Catherine Briggs

History of Marriage and Divorce in Canada Introduction:  Recently, family law has been the subject of most frequent and important reform.  Amendments to provincial and federal family law legislation, and other legal changes made by the courts, have reflected and anticipated dramatic social changes, such as more couples separating or living together outside of marriage, more women working outside the home as well as in it, and large numbers of children living with single parents or step-parents.  Divorce law is one of the key components of family law in Canada.  Since the 1960s, marriage and divorce in Canada have undergone many changes that have substantially altered the meaning of marriage, the probability of its ending in divorce, and the circumstances which surround a marriage.  Marriage laws have been influenced by: the ratio of marriageable males to females; tendency of men to marry women younger than themselves; economic factors.  Contrary to popular mythology, the common law provinces of Canada did not slavishly follow British precedents and practice during the colonial period.  After the first Federal Divorce Act was passed in 1968, society has become more tolerant of separation and remarriage  Evolution of marriage and divorce laws from Pre-Confederation to the establishment of the  Within marriage, roles of men and women were prescribed under the doctrine of coverture - women’s rights were subsumed by that of man.  Husband’s role was that of a provider and protector and wife was responsible for sustaining the marriage. Hence, the failure of a marriage was always blamed on the wife.  Marriage used to be a largely patriarchal institution. Despite feminist efforts to reform married women's property acts, most married women remained financially vulnerable, largely dependent upon the income and resources of their husbands.  Changing history of marriage are also due to changes within the family, society and the economy Pre-Divorce Act  Divorce courts were only operating in British Columbia, New Brunswick, and Nova Scotia before World War I  Divorce was not a common occurrence in Canadian society and each individual province had their own jurisdiction over divorce and in some regions, divorce was not even a legal option  Before 1867, only five divorce acts were passed and published either in the Statutes of the Province of Canada or in the Journals of the Legislative Assembly of the Province of Canada.  1867-1978: person wishing to get divorce had to first to place a notice of intent to petition the government for an Act of Divorce in the Canada Gazette and in two newspapers in the district or county where the petitioner resided for a six months.  Petition had details regarding date and place of the marriage, and reasons why the marriage is not working.  If the petition were allowed, Parliament would pass an Act of Divorce nullifying the marriage. Until 1963, a transcript of the Act was published in the Statutes of Canada for the current year. Then, between 1964 and 1968, the transcript was published in the Journals of the Senate of Canada.  Before Confederation the provinces of British North America had widely varying procedures on divorce, which was plainly a provincial matter.  Provincial variation on the matter of divorce was a way of life before the federal divorce reform of 1968, Since that legislation operated through provincial courts and did not deal with many questions related to divorce proceedings still in provincial jurisdiction like family law, the role of the provinces has remained crucial and distinctive. (Divorce in a Small Province: Bumsted)  In most other jurisdictions in Canada, provincial law incorporated by reference the English Matrimonial Causes Act of 1857; this permitted a husband to obtain a divorce on the grounds of his wife’s adultery, and a wife to do so provided she could establish that her husband had committed incestuous adultery, rape, sodomy, bestiality, bigamy, or adultery coupled with cruelty or desertion Divorce Act of 1968  First federal Divorce Act in 1968 gave Canadians across the country access to judicial divorce.  Permanent marriage breakdown to be considered divorce while also retaining adultery, cruelty and desertion as fault-based grounds.  Revisions to the Divorce Act in 1985 reduced the adversarial nature of the process and provided different ways in which property could be equally divided and the child support could be provided. These changes enabled many couples who had been living apart to legally split their relationships.  The grounds for divorce set out in the 1968 Divorce Act were equally available to husbands and wives, thus removing the double standard that had existed under the U.K. Matrimonial Causes Act. o Double standard: When men are allowed to call for a divorce on the grounds of adultery but women are not.  Grounds set out in section 3 of the Act - adultery, rape or another sexual offence such as a homosexual act, bigamy, or physical or mental cruelty.  Grounds set out in section 4 of the Act applied if the parties had been living separate and apart and there was a permanent breakdown of the marriage based on specified factors, such as imprisonment of spouse for more than two years, being addicted to alcohol or drugs, having disappeared or deserted the petitioner, failing to consummate the marriage. (Douglas 2001)  Divorce judgments were made in two stages: o Decree nisi - unless a judge shortened the period, the petitioner could apply for the decree to be made three months after the decree nisi had been granted. o The parties were not free to remarry until the decree absolute was granted.  Even though the Constitution Act of 1867 states that divorce laws are in the hands of the Federal parliament, jurisdiction is granted with respect to property and civil rights to the provincial legislatures Divorce Act of 1985  Reformed Act brought upon many significant changes to the grounds for divorce.  Section 8 - divorce can be granted if there is a breakdown of the marriage; if spouses have lived separate and apart for at least one year, respondent spouse has committed adultery, or physical or mental cruelty.  Section 9 - lawyers have to discuss the possibilities of settlement, negotiation or mediation of issues in the divorce proceeding, with their clients o Another method may be litigation or mediation as part of the litigation process.  Section 11 - no divorce will be granted if the parties have plotted with each other; until reasonable arrangem
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