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Lecture

Marriage and Divorce.docx

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Department
Social Science
Course
SOSC 1350
Professor
Julie Dowsett
Semester
Winter

Description
February 1 , 2012 M ARRIAGE AND D IVORCE  Dorothy Chung reading – talks about historical and contemporary family law, and provides definition of neoliberalism  Marriage in Canadian society today – marriage would look different to those of people of earlier generations – not only in terms of the legal context, but also in terms of social, economic and political context (i.e., you could marry someone of the same sex, and if you were a woman married to a man, you wouldn’t be considered his property) – from a feminist perspective, these are positive changes  Marriage in particular or family more generally are not at all equitable institutions for women  The legalization of same-sex marriage does not mean that the law or Canadian society is equitable for queer families  Marriage, like the family more generally, sts changed dramatically in tandem with political and economic changes over the course of the 21 century 1. The Family as Socially Constructed  Social construction of the family - mothering and fathering – ostensibly they’re equivalent terms. The female parent does mothering, and the male parent does fathering. However, what is associated with mothering and fathering, are quite different: a. Societal standards for a “good mother” vis-à-vis a “good father”  In contemporary society, “good mother”/ ”unfit mother” are often common terms to evaluate women who have children  We understand mothering to encompass a wide range nurturing behavior  In context, “good father”, is often narrowly associated with a man’s ability to fulfill his role as the provider.  One doesn’t necessarily hear the term “good father”  Mothering a child is generally associated with all types of activities including buying the groceries, preparing food, cleaning the house, soothing children, ensuring the child is safe at all times, etc.  However, fathering a child is generally just associated with procreation – the sperm meets the egg and that’s it b. The ideology of (white) motherhood  This ideology is assumed erroneously assumed to be timeless and universal – however, it’s a social construction that came out at a particular time and place for a particular reason  This ideology emerged primarily in the 19 century in Europe and North America  A large part of it remains with us today in how we evaluate mothers, but this isn’t timeless or universal at all  In many societies (i.e., many Canadian Aboriginal societies), child rearing is seen to be the responsibility of everyone, and the role of the mother occupies only a peripheral part of a woman’s social identity  Anthropologies have demonstrated that when a mother’s labor outside her home is required, the mother-child bond is deemphasized. But when it’s not required, it’s tends to be emphasized, and mothering tends to be glorified and essential to development  Middle and ruling class women of the 18 , 19th and 20 centuries, didn’t necessarily have to work outside the home and as such, mothering became glorified  In the last 20-30 years, it has been far less possible for people to make ends meet without dual income families, yet the ideology of motherhood remains largely intact 1  This ideology is a romanticized version of motherhood, but suggests that only by having a child, can a woman actualize her full potential, and access the meaning in her life  Motherhood is otherworldly, saintly. There’s an image of kind, self-less and gentle mother.  The mother is venerated for not only being only selfless, but also being completely self- sacrificing for her family, she’s likely heterosexual and white middle-class  This ideology suggests that motherhood brought upon a culmination of feminine fulfillment for all “normal” women, and this ideology places central emphasis on the biological mother assuming the care and responsibility for her child, especially during a child’s early years  This ideology does not understand what women do for children, it’s not understood as actual labor,(as social feminists would understand it) in so far as mothering is it’s seen as a “labor of love”  It also suggests that all “normal” women desire to be mothers, as such, women who do not like children, or are child-free by choice are seen as unnatural or selfish  Influence of the ideology of motherhood in criminology: criminal women with psychological problems are often characterized as having a want of maternal feeling because if they don’t have children there must be something psychologically wrong with them – this idea of not wanting to be a mother pathologizes you in a sense  Conversely, men who do not desire to be fathers, or who do not like children are not characterized as being “unnatural” or “selfish”, and they’re certainly not criminalized  Sometimes, there are men who really like children and want to raise their children as effeminate – we clearly see the hegemonic constructions of masculinity/feminity in this ideology of motherhood  In this ideology, mothering takes place within a heterosexual family, and lesbians are seen to be “unfit mothers”  Historically in Canadian law, the quickest way to lose custody for your children is to come out as a lesbian. Lesbian mothers have been considered far more harmful to their children than violent fathers  Because of the prevalence of this ideology of motherhood, mothers are blamed for a variety of social problems  Feminist studies of critical literature have pointed out that mothers continue to be held responsible for almost any conditions that their child might develop (i.e., bed-wetting, schizophrenia, learning problems, homicidal tendencies etc.)  Moreover, employed mothers are often faulted for spending insufficient time with their children, despite the fact that research has shown that children are not negatively affected by their mother’s employment  Older children with working mothers are actually more likely to have higher career goals and motivation etc., and tend to evaluate female competence, and hold less rigid and traditional views of gender roles  In other words, despite research that has been done for decades disputing critiques of women who hold paid employment, women continue to be blamed for working outside the home, and for anything that happens to the child  This ideology is not only not universal, but also quite racist, classist, and heteronormative  Only children of certain types of women (i.e., white or middle-class) were viewed as priceless or inherently valuable  This ideology of motherhood has been very rarely extended to poor women, disabled women, aboriginal women and women of color  There’s persistently been this rhetoric that the poor have too many children, and poor and racialized women are bad mothers because this ideology of motherhood is largely privileging white/middle-class mothers 2  There’s no equivalent to this ideology for fatherhood. This idea that blame fathers for the ills of society of for what their children do, either as children or as they get older, is almost entirely absent in the clinical and psychological culture – unless they’re fathers of color/Aboriginal. Blaming the middle-class white father for the ills of children just doesn’t happen 2. Marriage and Property a. Blackstone on coverture  Blackstone’s commentary on the laws in England shows that they were more influential to the laws in the United States than it was in England  English common law generally restricted opportunities open to married women – this idea was developed during the late middle ages (1800s)  From a socialist feminist perspective, around the various beginnings of capitalist forms of production. Under this doctrine, the husband was considered the lord.  The husband and wife were viewed legally as one person, and that one person was the husband – then who’s the wife? (See 2b)  Blackstone writes that the husband is allowed to give his wife “the power of correction”  Domestic \ was entirely legal as long as it concerned a husband’s so-called right to chastise or correct his wife b. Engels on marriage turning women into property  Engels would say that the wife is property  Engels was the first theorist to historicize the family  For Engels, marriage turns women into property – wives become the property of their husbands  Marriage is like a capitalism exchange – capitalism is about exchanging commodity for commodity. Women are exchanged between men as commodities  Engels also argues that the wife is very similar to a prostitute, or today, a sex-worker. A prostitute is exchanged between men as well  The difference for Engels between the wife and the prostitute is the length of the contract – wife – is exchanged between men for life; prostitute – is exchanged between men on a much more regular basis c. The “unity doctrine” in Canadian law  The unity doctrine is the legal understanding of marriage that Canada received from Britain  It was an updated version of coverture  Like coverture, under the unity doctrine, the wife became a mere extension of her husband, with approximately the same legal status as a child  Under the unity doctrine, married women could not own property  If we accept the argument that marriage turns women into property, than that makes sense because how can property (i.e., women) own property (i.e., children)?  When women married, they were legally obligated to give all property acquired to their husband, and if they acquired property during their marriage, it would automatically go to the husband (i.e., livestock, furniture, money etc.) – and this left women very vulnerable  E.g., with regards to custody and guardianship laws, the Canadian court specifically upheld the absolute right to fathers to have legal custody over children.  It effectively allowed men to divorce or abandon their wife and children, and still maintain legal control over the children  With the industrial revolution, the problems with the legal doctrine became clear 3 3. Early Industrial Capitalism and Marriage/Divorce Law  From the 1880s and onward there was rapid industrialization with the industrial revolution – a lot of people moved from rural life and farming life into the city.  Fathers/husbands would send their wives and children to look for housing etc. and said that they’d join them later, but then they never would. This created social problems in a number of Canadian cities – i.e., the feminization of poverty where women are more likely to be poor than men  Feminists and other social reformers sought legislation that compelled men to support them a. Ontario Married Women’s Property Act (1884)  Beginning with Ontario in 1884, several provinces introduced the Married Women’s Property Act  This act introduced the concept of separate property regimes, which at the time seemed really great, but later proved to be problematic. The concept of separate property meant that both wives and husbands had the right to administer and dispose of any personal property, whether it was obtained before, during or after the marriage. If the marriage failed, each partner kept what was his or hers, so whatever it was that you brought into the marriage, you got to keep it after the divorce  If you acquired property during the marriage, each party got to keep the property acquired during the marriage b. Ontario Deserted Wives’ Maintenance Act (1888)  Most provinces enacted legislation that introduced a legal obligation on husbands and fathers to support the family following the separation  Starting in 1888, provinces started to introduce legislation saying that if you abandon your children, you have a legal obligation to pay the mother for the support of the children (i.e., child support law) c. Federal Marriage and Divorce Act (1925)  Marked the federal government’s first legislative act under its jurisdiction of marriage and divorce – confederation happens in 1867, but the federal government didn’t really make an attempt at creating legislation relating to marriage and divorce  Prior to this, provinces had their own acts to deal with the breakdown of marriage and separation, but federally, there wasn’t much  The laws varied depending on the provinces you lived in, and divorce was not a legal option in many provinces (i.e., divorce courts were only operating in BC, NB, NS)  If you had a lot of money, you could petition parliament for divorce using a British statue called the Act of 1857, but the vast majority didn’t have enough money to petition parliament to invoke this act – therefore before 1925 divorce was more or less illegal  Prior to 1925, adultery was the primary ground for divorce (double standard for women because not only did they have to prove that they committed adultery, but they also had to prove one other ground)  This was abolished with the Marriage and Divorce Act of 1925 d. Maternal feminism and the “ideology of motherhood”  Most influenced family-related law and policy – premised on the assumption that men and women are different, but complementary in nature, and we excelled in separate but equal spheres and activities. Men excel in the sphere production, and women excel in the sphere of reproduction  Maternal feminists believe that women are subordinate to men, mainly because their central roles as wives and mothers of the family is not legally recognized 4  Maternal feminists embraced wholeheartedly the ideology of motherhood to change the law; they felt that motherhood was a sacred institution – because a mother was close to god as a woman could become. As such, they argued that it is critically important that the law protects the glorious, angelic, saintly, benevolent mothers from their renegading, never-do- well husbands who up and left them  Therefore, from the 1880s onward, maternal feminists fought for policies so that women can receive some money when marriage failed  Positive benefits to maternal feminist activism o The abandonment of the unity “doctrine” o They also allowed for a certain amount of state support for abandoned mothers – there was still the ideology of motherhood that a mother has to be within the context of a heterosexual family o But in upholding the ideology of motherhood maternal feminists helped to entrench in law a definition of a family as one 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  Child custody arrangements were highly influenced by the ideology of motherhood  Prior to the mid-late 1800s, custody decisions in Canada were based on the British common law rule which held that a father was the sole legal guardian of his children  A mother could only be the legal guardian to the children in the event of the father’s death – and his previous appointment of her as their customary guardian. So, the only way a mother could be a legal guardian of her own children is if the father, before he died, stated in a legal document that the mother would therefore be the mother of his children in the event of his death  Following the separation, mothers had no legal rights to even visit the children, let alone custody  When the father died, the children would be under the custody of the nearest male relative  Blackstone said, mothers were entitled to “reverence and respect”. The power of fathers “continues even after his death, for he may by his will appoint a guardian to his children”  Therefore, mothers should have reverence and respect, but only by way of his children b. Talfourd’s Act (Britain, 1839)  Allowed mothers a limited likelihood of custody rights and, in the case of paternal custody, a certain degree of visiting rights if the cause of their divorce wasn’t her adultery  Women were only eligible to gain custody of a child under the age of 7, and after this, the child would be awarded to their father – this was absolute privilege of fatherhood c. Replaced soon after with “paternal preference”  Both of these were based on this idea that fathers needed the labor of their children, especially older children, for the family, and as well as the belief that children needed to be raised by a firm hand (i.e., the dominant form of masculinity was one of which where fathers were strong, and women are weak)  In both Canada and Britain, a number of factors led to the gradual replacement of the paternal preference doctrine, and these included: o The promotion of the thood by maternal feminists – played a huge role in the switch from in the early part of the century, men getting the children almost 100%
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