Divorce: Then and Now

“There is always some madness in love. But there is also always some reason in madness.” – Friedrich Nietzsche

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In an excellent article by John-Paul Boyd, he writes about the history of divorce:

When we of the commonwealth let our hair down in the mid-nineteeth century and agreed that people could get divorced without having to engineer the passage of a private member’s bill through Parliament, we weren’t prepared to simply walk away from a centuries-old dedication to permanent misery. As a result, you couldn’t just say talaqtalaqtalaq and be done with it, you had to get a judge to make a divorce order and that meant proving the facts justifying a “sentence” of divorce.

If you had the good fortune to be male, you could ask for a divorce under s. 27 of the 1857 Divorce and Matrimonial Causes Act on the basis that your wife had committed adultery at some point during your marriage. If you happened to be female, simple adultery was a no-go. Instead, you could ask for a for a divorce on the basis that your husband had committed:

  • incestuous adultery;
  • bigamy with adultery;
  • rape, sodomy or bestiality;
  • adultery coupled with cruelty; or,
  • adultery coupled with “desertion without reasonable excuse” for at least two years.

In Canada, … our first legislation on divorce, the 1968 Divorce Act, abolished the distinction between sexes. Regardless of gender, you could ask for a divorce on the basis that you had been separated for at least three years, or, under ss. 4 and 5, that your spouse had:

  • committed adultery;
  • been guilty of sodomy, bestiality, rape or a “homosexual act” (exquisite interior design, perhaps? scrupulous attention to personal grooming?);
  • gone through a form of marriage to someone other than yourself;
  • treated you with such cruelty that you could no longer live together;
  • been imprisoned for at least three of the last five years;
  • been recently sentenced to death or imprisonment for at least ten years;
  • been “grossly addicted” to alcohol or drugs for the last three years; or,
  • disappeared for the last three years or deserted you for the last five years.

Things got much better with the 1985 Divorce Act, which introduced a “no-fault” version of divorce.

What struck me most about this article was the progression from women as inferior to men to women as equal to men; as the shifting legislation reflects the ever-evolving vision of justice.

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