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LS101 – Nov.26.doc

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Legal Studies
LS 101
Frances Chapman

LS101 – Nov.26 26/11/2007 21:02:00 ← THE DIVORCE REVOLUTION ← ← Defining Marriage • social, moral, religious norms and values associated with this institution • Canada, Finland, Denmark, Sweden and Spain now recognize same- sex marriages • Adultery is a violation of someone’s social norms – in Pakistan and Greece, adultery can be punishable • Marriage has five main characteristics: 1) Marriage is a socially legitimate sexual union 2) Marriage is a public affair – must be registered. 3) Marriage is undertaken with some idea of permanence. 4) Marriage involves emotional commitment and support. 5) Marriage is a contract with specific rights and obligations • Marriage is governed by the provincial government • Common law marriages are recognized after 3 years of cohabitation or a significant amount of time and they have a child ← ← Divorce in Canada • Division of Powers o Divided between provincial and federal gov’t – divorce action itself, division or property, custody and support are all with the federal gov’t o Province takes care of marriage before divorce – creation of marriage, documents on the breakdown of marriage, separation, support and maintenance of children, division of property and custody • Before 1968, divorce procedures varied from province to province o In Nfld and Quebec, there was no judicial divorce – however, could still get it through a private Act of Parliament o In other provinces, husband could only get divorce by proving his wife’s adultery o Wife could divorce a reason for adultery, rape, sodomy, beastiality or bigamy o Frigidity or impotent o Permanent marriage breakdown and living separately or apart • State of California was the first to introduce no fault divorce (1970) o Irreconcilable differences • Divorce is the only way a marriage can be legally ended, apart from death • Process can be relatively simple if the issues are uncontested • Family law is very economics driven ← ← Separation • Separation agreement o Very often, parties will use a mediator – splitting up property etc. o If there are issues of domestic violence, power imbalance or huge amounts of animosity, mediation will likely not be successful o Parties will often seek a lawyer to write out a separation agreement • Re-opener clause o Well-being of children and hidden income/money can be grounds for re-opening • Formal requirements – usually has to be in writing and signed o In Ontario, must also have a witness o Independent legal advice – taking agreement to a lawyer at the end of the informal process (e.g. mediator) to see if it is a good outcome a) D
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