FREE ESSAY ON CHANGING DIVORCE LAWS

CHANGING DIVORCE LAWS

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. 
Divorce has a big impact on the family including the children and the two parties
involved. First, evidence continues to mount showing that divorces often seriously damage
children. Families facing divorce or separation have to be able to recognize the problem.
There are stresses associated with divorce and separation such as less time with
children, loss of family and friends, relocation, endless uncertainty, and unsolved
parental issues. Parents can unwittingly pass stress on to the child by fighting in front
of them, yelling, making child choose between them, putting child in the middle of
conflicts, or belittling the other parent. In Canada, more than 10 000 children were
affected by divorce in 1994 (Gallagher). At least 60% of children will feel rejected by
at least one parent and about 60% of second marriages end in divorce because families are
unable to blend (Gallagher). Children are more harmed by continuing parental conflict
than they are by divorce. 
Second, women are also affected by a divorce or separation. Statistics Canada reports
that 64% of divorced men remarry compared to only 52% of divorced women (McGovern). The
chances of a second marriage lasting are far worse than a first marriage - an estimated
60% of second marriages end up on the rocks (McGovern). For most women separation or
divorce results in drastic reductions in income and a decline in living standards.
Regardless of who calls the marriage off, women are almost always far worse financially
in divorce. Two-thirds of the women who receive alimony are lone mothers whose annual
alimony income averages $4 900 or 14% of their total income of $33 500. Their ex-husbands
pay out an average 9% of their total income of $55 400 (McGovern). A study conducted in
1988 for the Department of Justice found that after divorce, a woman's average income was
between 64% and 69% of men's income 
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(Eichler). Since in the majority of cases the children reside after divorce with the
woman, the per capita income of the female post divorce household tends to be much
smaller than that of the male post divorce household. 
Third, fathers' rights groups have held cross country hearings on how to change Canada's
30 year old Divorce Act in 1998. In an article written by Ronda MacCharles in the Toronto
Star, stated that Parliament heard submissions that non-custodial parents - often men -
are unfairly denied access to their children after a divorce. The report makes 48
recommendations that suggest not only legal changes, but also a cultural shift on how
adults must share the impact of divorce on children. Some of the recommendations include
the elimination in law of the words 'custody and access' and the replacement of those
notions with the concept of 'shared parenting' which it defines as shared decision-making
about schools, residence and medical treatment. The terms 'custody and access' promote an
adversial approach and emphasize parental labels such as custodial and non-custodial
parent or primary care-giver as well as the notion of parental rights that stress
'ownership' instead of parental responsibilities. Other recommendations included to
encourage all parents to develop a 'parenting plan' before separation that would outline
how arguments would be settled. The committee would also like the courts not to favor one
parent over another on the basis of gender when making their decision. If these proposals
are implemented, they would represent one of the biggest overhauls to the 30 year old law
since Canada adopted the notion of no fault divorce in 1985. In a following up article,
the government accepted the committee's suggestion for a co-coordinated nationwide
approach to parents who fail to respect parenting orders and will also agree with the
committee on recognizing the role of grandparents and other extended family members as
significant in the child's life. These 
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changes are needed today as they provide for a new parenting system that is surely needed
in today's society.
There are a number of things society can do to make it harder to split, such as making
tougher laws. The fallout from divorce is enough reason to rewrite the law to make it
harder to break up. However, a change in law rarely leads to a change in society. The way
to promote justice in this area is through property distribution and enforcement of child
support. Others believe that divorce law is trending toward spousal lawsuits against
former partners for marital misconduct. For example, in June 1993 a woman was allowed to
sue her husband for concealing his bisexuality from her. With the new basis to obtain
divorces, children are being corrupted and couples are corrupting themselves. Society
needs to make a change in Canada's divorce laws and realize that divorce is hurting the
society as a whole.
REFERENCES
"Divorce" MacLean Nicol Family Lawyers Online. 12 April 2000. Available: 
*www.divorce.bc.ca*.
"Divorce law in Canada" Lloyd Duhaime, Barrister and Solicitor Online. 12 April 2000 
Duhaime and Company, 1994-1999. Available: *www.duhaime.org*.
Eggertson, Laura and Tim Harper. "Custody report called 'middle of the road'" The Toronto

Star Online. 26 November 1998. Available: *www.elibrary.ca/cool*.
Eichler, M. "Marriage and Divorce" The 1998 Canadian Encyclopedia Online. 06 September
1997. Available: *www.elibrary.ca/cool*.
Gallagher, Noel. "When the fighting must stop children are often harmed by continuing
parental 
conflict" The London Free Press Online. 19 January 1998. Available:
*www.elibrary.ca/cool*.
"Industry Canada: Marriages and Divorces - 1996" M2 Presswire Online. 29 January 1998. 
Available: *www.elibrary.ca/cool*.
MacCharles, Tonda. "Divorce law review to go ahead" The Toronto Star Online. 08 May 1999

Available: *www.elibrary.ca/cool*.
MacCharles, Tonda. "Sharing kids aim of new divorce law" The Toronto Star Online. 10 
December 1998. Available: *www.elibrary.ca/cool*.
McGovern, Celeste. "The mirage of 'easy' divorce" Alberta Report/Western Report Online. 
28 August 1995. Available: *www.elibrary.ca/cool*.
Ward, Peter. "History of Marriage and Divorce" The 1998 Canadian Encyclopedia Online. 06
September 1997. Available: *www.elibrary.ca/cool*.