History of Marriage and Divorce in Canada
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
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
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
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
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
Section 11 - no divorce will be granted if the parties have plotted with each other;
until reasonable arrangem