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breathedoutThe doctrine of marital unity, through which married women lost most of their rights to property, entailed a "suspension of the independent existence of the wife, and an absorption by the husband of the woman's person and all her belongings... " So wrote Clara Brett Martin, Canada's first woman lawyer, who noted the irony of the marriage ceremony, in which the husband solemnly promised to endow his wife with all his worldly goods. With veiled sarcasm*, Martin (who, incidentally, never married**) attributed the injustice of this situation to the common-law tradition that Canadians had inherited from England. "This notion of the unity of husband and wife," she wrote in 1900, "meaning thereby the suspension of the wife and the lordship of the husband, seems to have been particularly agreeable to the whole race of English jurists, tickling their grim humor and gratifying their very limited sense of the fitness of things."
—Constance Backhouse, "Married Women's Property Law in Nineteenth-Century Canada," Law and History Review, Vol. 6, No. 2 (Autumn, 1988)
*doesn't seem that veiled
**doesn't seem that incidental
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Date: 2019-02-09 11:39 pm (UTC)no subject
Date: 2019-02-09 11:49 pm (UTC)Via this Backhouse article I'm learning that there was a similar pattern of reform about coverture, too: England was putting means in place by the late 16th century, for example, by which deserted wives could protect their property and support themselves and their children in the absence of their husbands; but Canada, largely due to a less developed judiciary structure, just kept the old English common-law provisions un-reformed until the mid 19th century. Pretty wild.
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Date: 2019-02-10 12:05 am (UTC)Obviously the main effect of the legal position in Canada was that people went and got divorced in the States (which comes up in L. M. Montgomery surprisingly often).
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Date: 2019-02-10 12:19 am (UTC)And gosh, I don't remember anything about divorce in Montgomery at all. Like I don't even remember it existing as a possibility. Clearly I should re-read.
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Date: 2019-02-10 12:26 am (UTC)I'm sure Mrs. Lynde gossips about it, but mostly I'm thinking of the less-well-known Jane of Lantern Hill, where it's a major plot point.
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Date: 2019-02-10 02:09 am (UTC)no subject
Date: 2019-02-10 01:22 am (UTC)no subject
Date: 2019-02-10 02:10 am (UTC)no subject
Date: 2019-02-10 07:50 am (UTC)It's also making me think a lot about my experiences with common law marriage in Canada. I find that common law marriage is treated legally identically to "official" marriage pretty much everywhere -- you're "family" for things like hospital visits, and qualifying for Student Family Housing; common law spouses can go on each other's vision/dental insurance; you can sponsor someone for Permanent Resident status as your common law spouse. I've been on the lookout for the last few years and I've never encountered something that was restricted to had-a-wedding married couples.
All that is pretty cool! But also, you can be common-law married after a single year of cohabitation. It varies by organization, but both the Canada Revenue Agency (i.e., Canadian IRS) and Citizenship & Immigration Canada set it at 1 year. Ontario sets it at 3 years. In Ontario, if a common law relationship ends, one of the people involved might owe spousal support for the other.
Also: "A conjugal relationship exists when there is a significant degree of commitment between two people. This can be shown with evidence that the couple share the same home, that they support each other financially and emotionally, that they have children together, or that they present themselves in public as a couple."
All of which is to say that I think a lot more people are "married" in Canada than they realise.
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Date: 2019-02-10 04:48 pm (UTC)no subject
Date: 2019-02-11 01:05 am (UTC)