Changing Divorce Laws Essay Research Paper In

Changing Divorce Laws Essay, Research Paper

In 1995, Statistics Canada data shows that 30% of marriages split (McGovern). Since the 1960’s, marriage and divorce have been undergoing profound changes which have altered the meaning of marriage, the chances of its ending in divorce and the circumstances attached to marriage. These changes have made it easier for couples to obtain a divorce due to the changing laws and changing morals of society. The changes include three new grounds needed to prove marital breakdown, such as your spouse committing adultery, your spouse causing mental or physical cruelty or a separation of a year it was previously three years. Divorce also impacts the family as a whole, not only the children but also the two parties involved. The government needs to make changes to the Divorce Act as people more and more are getting divorced as it brings a negative impact to those who wish to marry in the future.

Over the years divorce has been easier to obtain. Divorce was extremely uncommon in Canada until after WWII. Until that time, Canada had one of the lowest divorce rates in the Western World, this is because opinions by social and religious leaders condemned divorce as a threat to the family. The strength of this opinion prevented the easing of Canada’s divorce laws. Consequently, access to divorce in Canada was extremely limited until 1968. Until this time, getting married usually meant forever. Divorce was illegal unless one mate was proven adulterous. When divorce did happen, one party was believed legally innocent, the other party guilty, and that judgment affected the financial settlement. Both partners’ social status was sufficiently hurt – most people tried hard to avoid divorce if they could.

By 1968, however, the sexual “revolution” was in full swing. Couples were rebelling against old sexual restraints, a trend supported by the exaggerations of cash-hungry journalists and movie-makers. Monogamy was out, ‘free love’ thrived, and divorce represented freedom. Enough people wanted divorce by the late 1960’s that the pressure was on to change the law.

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After long and bitter parliamentary debates, the federal Divorce Act was revised. Additional grounds for divorce included desertion, imprisonment, or separation for at least three years plus marital offences of physical and mental cruelty. The new law eliminated the need to appear in court in most cases – often the most personally humiliating experience in the older legal procedure. The law later changed again in 1985, where it eased off yet again, to allow divorces after only a year’s separation. The broad trend in Canada was to make divorce easier. It was accomplished by making it less fault-oriented where most divorce applications to the courts are no longer contested which eliminates the need for a formal court hearing where both parties testify and ask for different things. With “no fault” splits in place, the social stigma of divorce shrank. As more people divorced the stigma weakened further. The cycle continued while the divorce rate soared. In 1951, there had been only one divorce for every 24 marriages, by 1987, one couple divorced every two couples that married (McGovern). In 1993, there were 78 000 divorces across Canada, compared to about 11 000 in 1968 before the new divorce laws came into effect (McGovern).

Reasons for the incredible rise in the divorce rate are not entirely clear, but contributing factors include longer life expectancies, which increases the possibility of differences in the individual of both the wife and husband. The greater labor force participation of women and improved social security, meant that wives are less economically dependant on their husbands than in the past. The lessening of religious and social sanctions against divorce and also the movement towards a more “me”-oriented ethnic which stresses self-actualization over maintenance of the family unit. All of these factors suggest that an increased divorce rate may be an indication that expectations about the quality of marriage have risen and that many people prefer a divorce to an unhappy marriage. For these reasons, the divorce rate is on the increase

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and it is easier for couples to obtain a divorce using the three conditions: separation of a year, adultery, mental or physical cruelty.

The Divorce Act specifies the sole grounds for divorce as marital breakdown, and provides for three basic ways for proving it. First, you and your spouse have to be separated for one year. This is the easiest to prove and the most commonly used ground for divorce. The Act does allow for periods of attempted reconciliation lasting for 90 days or less – these periods do not “reset the clock” on your separation. However, if you live together for 91 days or more and then re-separate, the 12 month cycle starts again. The reason for your separation does not matter; all that matters is that you are in fact separated. You can also be “living separate and apart” while living in the same dwelling, although it is difficult to prove. You must be living entirely different lives – each doing you own cooking, laundry, and home maintenance – and, of course, not sharing the same bed. Second, your spouse has committed adultery. You do not have to name the person with whom your spouse committed adultery unless you are making some immediate claim against that party. You also do not have to find your spouse in bed with the other party, you only need to establish a high probability that adultery occurred – especially if it is not denied by the adulterous spouse. The simplest way to prove adultery is if your spouse is willing to admit it. You cannot invent the adultery simply as a way of obtaining a divorce. The act must have truly occurred and it must not have been condoned by yourself. Third, your spouse has treated you with intolerable mental or physical cruelty. The courts have interpreted cruelty as conduct that would make unbearable if you continued cohabitation. If your spouse causes unnecessary pain to you, either physically or emotionally, you may have grounds, you must be able to show that cruelty was of a “grave and weighty” nature, and not due to minor incompatibilities or outlooks between you and your spouse. The test of cruelty is quite

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subjective, and may vary considerably by circumstance and the parties involved. Under these three conditions a divorce can be achieved.