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Marriage and Divorce

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York University
Social Science
SOSC 1350
Julie Dowsett

MARRIAGE AND DIVORCE 3. Early Industrial Capitalism and Marriage/Divorce Law People left smaller areas and moving into the cities. Often mothers and children would move into the cities before their husbands and most never came. (Feminization of poverty) a. Ontario Married Women’s Property Act (1884) Introduced separate property redeemed First time they didn’t lose their property rights Separate property= both husbands and wives had property and disposed it and if the relationship failed they had what was his/hers. b. Ontario Deserted Wives’ Maintenance Act (1888) Led to similar legislations to other provinces Introduced a legal obligations to husbands and fathers to support their family after their divorce If they didn’t support them, they faced jail time After WWI, there were laws that imposed fathers who abandoned their wives and children. By 1900’s, women had some rights c. Federal Marriage and Divorce Act (1925) i. first legislative act under federal government’s new jurisdiction over marriage and divorce (obtained with Confederation in 1867) first time the federal government passed the law prior to 1925, provinces had their own acts to deal with this, but it didn’t mean anything most times you couldn’t divorce the only province where the divorce courts were operated were BC, New Brunswick and nova scotia ii. prior to this, divorce was difficult (if not impossible) to obtain in most provinces iii. people with (lots of) money could petition Parliament for divorce, using the Act of 1857 (British statute) it was in effect except B.C, nova scotia and new Brunswick iv. Act of 1857 had sexual double-standard Man could petition for a divorce but women could not. Desertion, rape , bestiality and adultery were grounds of divorce Why double standard? Based on the historical and social context. Women can’t say that a man cheated on her, because historically they didn’t. Later it permitted women to sue for divorce on the grounds of adultery alone d. Maternal feminism and the “ideology of motherhood” First wave feminism, suffrage, right to vote, right to be considered a person Most influenthd in terms of changes to law and policy ion the early 20 century Men and women are different and complementary in nature Believed that women were suburban to women because of central and important roles of wives and mothers were not recognized. Give women legal rights which isn’t in their homes and instead the public spheres. Maternal feminists endorsed and embraced the ideology Becoming a mother is as close to God, that the women can become From the 1880 and onward, maternal feminists fought for the rights of wives and mothers. Problematic: the abandonment of the property, certain amount of state of support for the abandonment of women, helped to entrench within the law a definition of the family based on heterosexual marriage and a gender division of labor 4. The Rising Influence of the Ideology of Motherhood a. Prior to the mid-late 1800s, father was sole legal guardian of the children Custody decisions in Canada were based on the English common law rule; the father is the sole guardian of the children Limited cases where a mother could become a legal guardian... E.g. a father died or he appointed her as a guardian. Following a separation, mothers had no legal rights to custody or visitations Many cases in which the father gives signed consent to retain custody of the children; were held unenforceable Ingles says Children = father is their property and so is the wives. “reverence and respect” the power of fathers continues as his death as he opposes it to his children b. Talfourd’s Act (Britain, 1839) Custody of infants act It did offer a small chance of custody for women and allowed women a certain and small degree as access as long as the grounds was not adultery Women were only able to obtain custody at the age of 7, after 7 years they go back to their fathers c. replaced soon after with “paternal preference” Fathers were in custody but small chance mothers had it. Based on the assumption that fathers needed their children for labor purposes because our economy was based on farming. The idea that children needed to be raised by a firm hand, women were considered weak so that’s why fathers were taking care of them. Fathers = strong, mothers = weak Soon it was replaced in Canada and Britian and because of the idealogy of motherhood, this doctureine started to be repleaced. Replaced by “tender years doctrine” d. “tender years doctrine” (late 19th century to 1980s) For the best interest of the child. Years that children were better off with their mother Birth to 7 or birth to 12. After 13, they were seen as the tender years, so boys with their fathers. e. Federal Divorce Act (1985) It changed, but not really changed. 5. Welfare State Capitalism and Divorce Law a. Federal Divorce Act (1968) It was seen to re-appeal this legislation Was reformed and now incorporates a different view of the family Resulted in a number of changes a) Separate property exists unless there is no
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