Comparative Approaches to Divorce: Canada and England

z zy zyxwvu THE MODERN LAW REVIEW Volume 35 March 1972 No. 2 COMPARATIVE APPROACHES TO DIVORCE : CANADA AND ENGLAND zyxwvu INJuly 1968 a new Canadian Divorce Act1 took effect, the first major change in the divorce law in that country for a century. Canadian society is comparable to English society in its attitudes to marriage and divorce and because the thinking behind the reports which preceded the new Divorce Acts in both countries is similar, it may be of interest to examine the working of the Canadian Act in its first two years of existence for indications of what may occur now that the English Divorce Reform Act has been brought into operation.2 Those who believed that English divorce law was urgently in need of change before the Divorce Reform Act of 1969 will find i t easy t o sympathise with Canadians for, in a society similar to ours and with the same tendency to breakdown of marriages, the only ground for divorce in eight of the ten provinces was a d ~ l t e r y . The ~ courts of Quebec (with approximately one-quarter of the population of Canada) and Newfoundland were unable to grant divorces a t all and, consequently, divorce by Act of Parliament had to be provided for the residents of those two provinces. In 19G6 a Special Joint Committee of the Senate and of the House of Commons was established. The Committee was strongly influenced by two reports which had recently been issued in England: Putting Asunder and the divorce report by the Law Commission, Reform of the Grounds of Divorce: The Field of C h ~ i c e . I~n coming to its conclusions, the Canadian Committee assumed the same background and the same opinions concerning marriage as had the Law Commission. The Report, however, favoured a combination of zyx 1 2 3 4 An Act Respecting Divorce, S.C., 1967-68, c. 29. January 1, 1971. Cruelty was a n additional ground for dissolution in Nova Scotia. Putting Asunder: A Divorce L a w for Contemporary Society, S.P.C.K., 1966. This is the report of a study group appointed by the Archbishop of Canterbury and headed by the Rt. Rev. R. C. Mortimer, Bishop of Exeter, which recommended that marriage breakdown be the sole ground for divorce in the U.K. 5 Cmnd. 3123 (1966). 113 vor.. 35 5 zy zy zyx zyxwvut zyxwv 114 VOL.36 THE I!dODERN LAW REVIEW matrimonial offences with breakdown of marriage as grounds for divorce. Four aspects of the (!anadian Act will be examined: in what circumstances is continued cohabitation deemed intolerable ; living separate and apart ;the reconciliation provisions ; and the safeguards protecting the spouse who is divorced after a period of separation. These aspects have been selected on account of their similarity to corresponding provisions in the English Divorce Reform Act. INTOLERABILIT,Y OF CONTINUEDCOHABITATION zyxwvutsrqponmlkjihg Divorce A c t 1968 (Canada) “ 3. a petition for divorce may be presented to a court by a hwband or wife, on the ground that the respondent, since the celebration of the marriage, .. ... , ( d ) has treated the petitioiier with physical or mental criielty of such a kind as to render intolcr- able the continued cohttbitatiori of the spouses.” Divorce Reform A c t 1969 (England) “2. (1) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say- ... ( b ) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected t o live with the respondent ”; It is not the cruelty aspect of the Canadian provision which is of interest for the English legislation has abandoned the use of this word altogether in favour of ‘‘ behaviour.” The second consideration in Canadian cases deciided under this section is, did cohabitation become intolerable? This is more interesting for the purpose of comparison. I n Lacey v. Lacey, Winney v. W i n n e y , Weiss v. WeissY6Wright J. said : “ The Act is a modern and remedial statute concerned with the problems and society of today. It is to be liberally construed and although the older foi-ms and concepts are to be respected, they are not to dominate the new remedies.” He found that “ I n almost every case, by the time it reaches the court, the parties must in fact be living separate and apart, for if they find life together tolerable, how can a court a t the instance of one of them find i t intolerable ? ” This particular problem is, of course, partly resolved in the English legislation by the provision of section 3 (4) for a sixmonth period of living together after the behaviour complained of. I n Herman v. Hermlzn it was held that the insanity and confinement of the respondent would not prevent cohabitation from being intolerable. The statement of Smith C.J.M. in Galbraith v. Gulbraith 10 that ‘‘ the key element in the definition is the intolerability of continued cohatiitation )’and the assumption that future zyx zyx 6 8 10 zyxwvu 7 At p. 282. [1970] 1O.R. 279. 9 (1969) 3 D.L.R. (34 551 (N.S.S.C.). At p. 285. (1969) 5 D.L.R. (3d) 543, 548 (Man.C.A.). MAIL.1972 zy zy zy zyxwv COMPARATIVE APPROACHES TO DIVORCE 115 protection is an important element to be considered is echoed in Goudie v. Goudie,l’ a petition for divorce from a drunken husband : ‘‘ The Act, as I have observed, creates a new concept, the significant test being the intolerability of future life together as man and wife. This is not to say that such a large interpretation is to be put on the section as to arrive at the result that just as soon as one spouse finds his or her married life intolerable that they can bring it to an end. The position is that the intolerability must derive from the conduct of the other party. NOW this conduct may be active or passive, it can consist of deliberate and carefully conceived ill-treatment, by word or deed, or it can equally arise from thoughtless neglect. It can, in short, be found in acts of omission equally with acts of commission. But there has to be something in the conduct of a respondent upon which to sustain the claim of future intolerable cohabitation. If this be so, then it is obvious that the evidence should be clear and adequate, no easy assumption should be permitted to enter into it; the court has to be satisfied that the conduct if reasonably considered leads to the conclusion that life together as man and wife will become intolerable for the petitioner. The test is a simple one and should be capable of easy application: Does the intolerability complained of by a petitioner stem from the conduct of the respondent? If t h a t conduct has t h a t result then I think it is safe to say that the petitioner has established her right to a divorce. If the intolerability arises from a general disenchantment or positive dislike, or any other causes then there are no grounds on which the marriage can be dissolved.” lil ... ... In Cuthbert v. Cuthbert l3 Mackay J. said: ‘‘ In our view this one isolated act [assault] under provocation when he lost his temper, and having in mind that while the wife alleges she was afraid of him but did not leave immediately and continued to live on with him and occupy the matrimonial couch, cannot be considered of such grave and weighty nature as to make the continuation of the marriage intolerable.” l4 zy In F . v. P.lS the respondent husband had become a ‘‘ hippy ” after his marriage; he used marijuana and LSD, sold hashish and held drug parties in the matrimonial home every night. The wife was utterly opposed to drug-taking, feared that the police would become involved and was disgusted by her husband’s way of life. She petitioned for divorce under section 3 ( d ) . The judge found that the wife’s attitude to drug-taking was such that the husband’s actions had resulted in “ a period of exquisite mental torture for her.” Her petition succeeded but it was not suggested that living a ‘(hippy life ” would automatically render cohabitation intolerable. 11 12 13 14 zyxwvu zyxwvut (1970) 9 D.L.R. ( 3 4 90 (Nfld.S.C.). 580, 584. At pp. 96-97, per Furlong C.J. [1968] 2 O.R. 501. At p. 507. See also Knoll v. Knoll [1969] 2 O.R. 18 (1970) 11 D.L.R. (3d) 621 (B.C.S.C.). zyxwvut zyxwvu zyxwvuts zyxwvut zy zyxwvu zyxwvu 116 THE MODERN LAW REVIEW VOL. 35 I n Aubrey v. Aubrey la the husband suffered from delusions but was not insane and did not deliberately offend his wife. It was held that the effect of his conduct was to make cohabitation intolerable. I n I . C . v. G . C.17 the husband was a transvestite. It was held that this practice automatically amounted to conduct that made cohabitation intolerable. The arbitrary division between section 3 (the matrimonial offences section) and section 4 (the breakdown section) offences caused difficulty in Knight v. Knight where it was held that “ ordinary ” addiction to alcohol could not be a ground for divorce under section 3 ( d ) as “ gross ” addiction was specifically mentioned as an indication of breakdown in section 4 (1) (b).19 LIVINGSEPARATE AND A P ~ R T Divorce A c t 1968 (Canada) “4. (1) In addition t o the grounds specified in section 3 . . . a petition for divorce may be presented to a court by a husband or wife where the husband and wife a r e living separate and apart, on the ground t h a t there has been a permanent breakdown of their marriage by reason of one or more of the following circumstances as specified in the petition, namely: ... ( e ) the spouscs have been living separate and a p a r t (i) for any reason other than that described in sub-paragraph (ii), for a period of not less than three years, or (ii) by reason of the petitioner’s desertion of the respondent, for a period of not less than five years, immediately preceding the presentation of the petition. ( 2 ) On any petition presented under this section, where the existence of any of the circumstances des16 17 18 13 cribed in subsection (1) has been established, a permanent breakdown, of the marriage by reason of those circumstances shall be deemed t o have been established.” zyx Divorce R e f o r m A c t 1969 (England) “ 2 . (1) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say- ... ( d ) that the parties to the marriage have lived a p a r t for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; ( e ) t h a t the parties t o the marriage have lived a p a r t for a continuous period of at least five years immediately preceding the presentation of the petition.” (1070) 10 D.L.R. (3d) 311 (0nt.H.C.). (1970) 9 D.L.R. (3d) 632 (N.B.S.C.). (1069) 68 W.W.R. 464 (B.C.S.C.), followed in Quinn v. Quinn (1970) 11 D.L.R. (3d) 372 (B.C.S.C.). “ 4. (1)I n addition to the grounds specified in section 3. and subject to section’ 5, a petition for divorce may b e presented to a court .by a husbgnd or wife where the husband and wife are living separate and apart, on the ground that there has been a permanent breakdown of their marriage by reason of one or more of the following circumstances as specified in the petition, namely: . . ( b ) the respondent bas, for a period of not less than three years immediately preceding the presentation of the petition, heen grossly addicted to alcohol, or a narcotic as defined in the Narcotic Control A c t , and there is no reasonable expectation of the respondent’s rehabilitation within a reasonably foreseeable period.” . zyxwvuts zyxwvutsr Man. 1972 COMPARATIVE APPROACHES TO DIVORCE zy zyx zyx 117 The Canadian Joint Committee recommended that marriage breakdown and separation for three years by reason of mental or physical illness be constituted a separate ground of divorce 2o but the Act leaves insanity to be dealt with under section 4 (1) ( e ) and this has caused some difficulty. For example, the safeguard that applies to divorces granted under section 4 (1) (e) thus comes into play when a divorce is granted on the ground of insanity and separation but not when it is granted for drug addiction, which is listed separately as an indication of breakdown in section 4 (1) ( b ) . Again, when a separation has come about because of confinement in a mental hospital it was not clear at first whether this could be dealt with under section 4 (1) (e) (i) or (ii). A series of cases has now shown that, in some provinces at least, petitions will have to be brought under section 4 (1) ( e ) (ii), the longer period. The Joint Committee had rejected the idea of a longer period of separation where one party objected to the divorce : “I f the parties have been separated for three years, or longer, however, it is hard to believe that the marriage had not irretrievably broken down. Certainly the court would be expected to consider carefully defended cases especially with a view to the possibility of reconciliation. However, if a couple were irreconcilable after three years, it is unlikely that they will be more amenable to cohabitation after five years. Two periods might provide a less scrupulous spouse with an opportunity for blackmail by threatening to defend the action.” 21 Nevertheless, because Canadian judges have interpreted section 4 (1) ( e ) (i) to mean that the spouses must not only be physically apart but also have the intention to end the marriage relationship, the Canadian law regarding the two periods of separation may have come to resemble the English provisions in section 2 (1) (d) and (e). I n H e r m a n v. Hemaan,22 where the husband had been confined in a mental hospital for twenty years, Dubinsky J. defined 6 c separate and apart ” ; “ Conceivably, there are many instances where husband and wife are physically absent from one another, even for a long duration of time. This absence may be brought about by a variety of causes, illness, nature of employment, etc. However, as long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words ‘ separate and apart ’ in the statute, there must needs be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, a marriage breakdown.” 23 zyxw ... 20 21 22 zyx Report of the Special Joint Committee of the Senate and House of Comiiions on Divorce (June 1967), pp. 135-138 (hereinafter referred to as Report). Report, p. 131. (1969) 3 D.L.R. (3d) 551 (N.S.S.C.). 23 At p. 555. zyxw zy zyxwvuts 11s THE MODERN LAW REVIEW VOL. 35 zyxwvut zyxwv zyxwv zyxw I n I€. v. the same judge held that a husband and wife were not living apart as long as she continued to visit him in a mental hospital. Once the visits stopped and she determined to have no more to do with him, she was in desertion and five years of separation would have to pass. K e n n e d y v. K e n n e d y 25 is another example of the complications caused by not listing insanity as a separate ground for divorce and by the interpretation of ‘‘ separate and apart.” I n that case the wife had been a patient in a mental hospital since 1947 and her husband had last visited her in 1958. It was held that he could not petition under section 4 (1) ( e ) (i) because the wife was unable to form the requisite state of mind but that he could petition under section 4 (1) (e) (ii). I n Rowland v. Rowland 26 the husband was in a mental home and again it was held that the-spouses did not both have the requisite attitude of mind for living separate and apart under section 4 (1) ( e ) (i). Once the wife ceased to visit her husband her petition could succeed under section 4 (1) ( e ) (ii) after five years had elapsed. The meaning of this section is not yet settled and there are indications that the interpretation may change. I n a recent short judgment,2Tin which no cases were cited, it was held that no proof of intent was required to establish that the spouses were living separate and apart. I n this case the husband had suffered a severe brain injury and was confined to a mental hospital without hope of recovery. The wife’s petition under section 4 (1) ( e ) (i) succeeded, although she had visited her husband in hospital in the three years preceding the presentation of the petition. The judge rejected the idea that the spouse of a mental patient could never rely on the three-year separation ground and that such a spouse would have t o remain in desertion for five years: such reasoning, he concluded, would be to introduce the concept of a matrimonial offence where it was never intended. I n Lachman v. Lachman 2 8 the question of intention and three years’ separation was considered for the first time in the Ontario Court of Appeal. I n this case the wife had spent many years in hospital with multiple sclerosis and had also developed a paranoid personality with a persecution complex. The husband petitioned for a divorce on the basis of three years’ separation. The court held that separation under section 4 (1) ( e ) (i) did not require a mutual rejection of the consortium. Physical separation, no matter for what reason, was sufficient, even if only one spouse was without the intent that the matrimonial relationship should continue; statements in K e n n e d y v. Kennedy 28 to the opposite effect were disapproved. 21 25 26 21 2s 29 zyxwvuts 11970) 9 D.L.R. (3d) 722 (N.S.S.C.). ‘(3d) ~~~’(B.c.s.C.). (1969) 6 D.L.R. (3d) 292 (0nt.H.C.). Kallwies v. Kallwies (1970) 12 D.L.R. ( 3 4 206 (Man.Q.B.). (1970) 12 D.L.R. (3d) 221 (0nt.C.A.). (1969) 2 D.L.R. (3d) 405 (B.C.S.C.). (i969j i D.L.X. Man. 1972 zyx zy zy zyxwv COMPARATIVE APPROACHES TO DIVORCE 119 zyxwvut On the other hand the Supreme Court of British Columbia held in Dorchester v. Dorchester 8o that mere physical separation was not sufficient t o entitle the petitioner to a decree under section 4 (1) ( e ) (i). His wife had been confined to a mental hospital since 1967 but the petitioner said that he had made up his mind that the marriage was over only in 1970 when he filed his petition. Macfarlane J. said : ‘‘ The physical separation of husband and wife is one of the factors which must be taken into consideration in cases of this kind, but there may be physical separation of the parties without there being a finding that the parties are living ‘ separate and apart.’ For instance, a serviceman may be posted overseas and be away from his wife for over three years without the parties living ‘ separate and apart ’ within the meaning of the Act. The evidence in any given case must be examined to determine upon what date the parties were not only living apart but also on what date did the matrimonial relationship cease t o exist.’’ 31 The approach exemplified in Herman v. Herman and Dorchester v. Dorchester would be, in the context. of the English legislation, not only superfluous (the court need not be satisfied of the irretrievable breakdown) but a hindrance to attempts a t reconciliation and contrary to the declared purpose of the new Act: giving a decent burial to dead marriages. I n Swinemar v. Swinemar 32 the wife left the matrimonial home a t her husband’s suggestion and with his consent, and her petition under section 4 (1) ( e ) (i) was successful. Other cases not involving insanity are: Seminuk v. Seminuk 33 where the husband moved to the basement of the house he had shared with his wife and had nothing more to do with her; it was held that they were living separate and apart, although under the same roof for a while. I n Rushton v. Rushton 34 the husband and wife lived in separate rooms of the same flat, he bought his own food and she performed no domestic services for him. They continued to share the flat because they were joint caretakers of a block of flats and in order to keep the job needed to appear as husband and wife and to live in the caretakers’ flat. They were held t o be living separate and apart. I n Reid v. Reid 35 the husband and wife occupied separate bedrooms; i t was held that mere cessation of sexual intercourse did not amount to living separate and apart. But in Foote v. Foote 3G one act of intercourse stopped the running of a period of separation. zyxwv zyxw “711 2 W.W.R. 634. “1 At p. G3G. (1970) 9 D.L.R. (3d) 201 (N.S.S.C.). 33 (1970) 72 W.W.R. 304 (Sa8k.C.A.). 34 (1969) 2 D.L.R. (3d) 25 (B.C.S.C.). 35 (1970) 71 W.W.R. 375 (B.C.S.C.). This case was followed in Pybvs v. Pybrts (1970) 72 W.W.R. 315 (B.C.S.C.). 313 Poote V. Foote (1971) 15 D.L.R. (3d) 292 (0nt.H.C.). Husband and wife had lived apart since April 1966 and the petition was presented in May 1969. The husband spent one night with his wife in December 1966 and as a result 30 32 zy zyxwvuts zyxwv 120 THE MODERN LAW REVIEW VOL.36 I n Beaudet v. Beaudet 37 the husband took a job in New Brunswick in 1965 and told his wife to1 remain in Quebec until he found a home for them. I n 1966 she refused to join him and i t was held that the living separate and apart did not begin until the date of her refusal. Additional cases of interest are B a y n e v. B a y n e 38 and J. v. 5.39 in which it was held that. a petitioner may be granted a decree pursuant to section 4 (1) ( e ) (i) even though the petitioner had committed adultery or W E I Sguilty of cruelty which would enable the respondent to be given a decree also. There has been an attempt in the English legislation t o clarify the meaning of the phrasr “ living apart ”: section 2 (5) reads: “ For the purposes of this Act a husband and wife shall be treated as living apart unless they are living with each other in the same household.” However, i t would be over-optimistic to believe that there will be no difficulty in defining the meaning of the word “ household ” in this new context. Presumably facts such as those in R u s h t o n v. R u s h t o n , all)ove, would not amount to living apart for the purposes of section ‘2 (1) ( d ) or (e), whereas in a Beaudet v. Beaudet situation, living apart would be held to have commenced in 19G5. zyxwv zyx zyxw zyxwvut RECONCILIATION Divorce A c t 1968 (Canada) (1) On a petition for divorce it shall be the duty of the court, before proceeding to the hearing of the evidence, t o direct such inqui tries to the petitioner and, where the respondent is present, t o the respondent as the court deems necessary in order to ascertain whether a postsibility exists of their reconciliation, unless the circumstances of the case are of such a nature that it would idearly not be appropriate to do so, and if a t that or any later stage in the proceedings i t appears to the court from the nature of t h e case, the evidence or the attitude of the parties or either of them that thew. i s a possibility of such a reconciliation, the court shall (a) adjourn the proceedin;:s to afford the parties an oppoitunity of becoming reconciled; aiid ( b ) with the consent of t h e 1)arties or in the discretion of the court, nominate 37 39 (i) a person with experience or training in marriage counselling or guidance, or (ii) in special circumstances, some other suitable person, t o endeavour t o sssist the parties with a view to their possible reconciliation. (2) Where fourteen days have elapsed from the date of any adjournment under subsection (1) and either of the parties applies t o the court t o have the proceedings resumed, the court shall resume the proceedings.” , Divorce Reform Act 1969 (England) “3. (2) If a t any stage of proceedings for divorce i t appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn for such period as i t thinks fit t o enable attempts t o be made to effect such a reconciliation.” zyxwv it was held that the parties had not been living separate and apart for three years. This conclufon would not be reached in England (hopefully) by virtue of the definition of living allart ” in s. 2 ( 5 ) . 38 (1970) 71 W.W.R. 230 (B.C.S.C.). (1969) 1 N.B.R. (2d) 461. (1970) 8 D.L.R. ( 3 4 760 (Sas1r.Q.B.). MAR. 1972 zy zyxwv zyx zyxwvu zyxwvu COMPARATIVE APPROACHES TO DIVORCE 121 The Canadian reconciliation provision is far more stringent than the English section 3 (2) as it is mandatory. This does not appear to have been the desire of the Joint Committee 4 0 and in fact the requirements of section 8 have resulted mainly in brief dutiful remarks by judges a t the start of their judgments. Typical is the following statement in Bonin v. Bonin 41: ‘‘ Before proceeding with the matter, I directed inquiries to the petitioner in order to ascertain whether or not a possibility existed of her r_econciliation with her husband, as is required of me by section 8 of the Divorce Act. The respondent was not present in Court. I was satisfied from her replies that there was no possibility of the spouses living together again as man and wife and, accordingly, I directed the case to proceed in the usual manner.” 42 There have been attempts by judges to lighten the burden of the , ~ ~ in cases where one party refuses a reconsection 8 p r ~ c e d u r e and ciliation while the other wishes one, judges have held that there is nothing they can do. In Paskiewich v. Paskiewich 4 4 Gregory J. said : “ I am satisfied that the respondent, aware perhaps only by hearing a t trial and for the first time unbiased evidence of what he has been doing to his wife and perhaps still unable to understand why she wants a divorce, desperately wants a reconciliation. If I thought there was ‘ a possibility of a reconciliation ’ (as i t is put in section 8 (1) of the Act), I would readily accede t o his counsel’s submission. I might in a case where i t seemed not inappropriate even go farther than the Act specifically authorizes and reserve judgment so as to prevent the start of the running of the fourteen days referred to in section 8 (2) and thereby give the parties unlimited time in which t o try and make their marriage a success. On the evidence I find that there is no possibility of a reconciliation. I am satisfied on the evidence that the petitioner will not go back and live with her husband as his wife and I hold that even the most fervent and sincere hope of one spouse that there will be a reconciliation cannot create ‘ a possibility of a reconciliation ’ where the other spouse is unreconcilable.” 45 I n some cases judges immediately find from the circumstances that reconciliation is unlikely 46; in others they are willing to apply the section in the spirit in which it was intended. However, it has become a practice for some judges to satisfy themselves on the likelihood of reconciliation merely by questioning the petitioner in 40 42 43 44 45 46 Report, pp. 152-154. 4 1 (1969) 5 D.L.R. (3d) 533 (N.S.S.C.). At p. 533, per Dubinsky J. Trites v. Trites (1970) 9 D.L.R. (3d) 246 (N.S.S.C.). (1969) 2 D.L.R. (3d) 622 (B.C.S.C.). At p. 624. I.C. V. G.C. (1970) 9 D.L.R. ( 3 4 632 (N.B.S.C.) (transvestism) and Fleming V. Fleming (1968) 69 D.L.R. (2d) 710 (N.W.T.) (respondent untraceable, petitioner living with another woman by whom he had a child). zy zyxwvutsrqponm 122 zyxwvu zy zy TI315 MODERN LAW REVIEW VOL.36 the brief period while he is walking to the witness stand to take the oath. Some lawyers are carrying out their duties under section 7 41 by the following method. When a client first seeks advice on divorce his lawyer gives him a questionnaire designed to elicit information pertaining to the case. The questionnaire asks the petitioner whether he has considcred the possibility of reconciliation and lists marriage counselling iigencies in the locality; the lawyer then considers his reconci1iaI;ion duties fulfilled and asks no more. zyxw zyxwvut zy SAFEGUARDS Dinorce A c t 1968 (Canada) “ 9 . (1) On a petition foi divorce it shall be the duty of the court ... ( f ) where a decree is sought under section 4 by reason of circumstances described in paragraph ( e ) of subsection (1) of that section, t o refuse thl: decree if the granting of the d w r e e would be unduly harsh or unjust to either spouse or wcluld prejudicially affect the making of such reasonable arrangements for the maintenance of either spouse as are necesrmy in the circumstances.” Divorce Reform Act 196Sl (England) “4. (2) Where the grant of a decree nisi is opposed by virtlue of this section, then,(a) if the court is satisfiled th a t the only fact mentioned in the said section 2 (1) on which the petitioner is entitled t o rely in support of his petition is t h at mentioned in the said paragraph ( e ) , and ( b ) if a p a r t from this section it would g r an t a decree nisi, the court shall consider all the circumstances, including the conduct of the parties t o the marriage and the interests of those parties and of any children or other persons concerned, and if the court is of opinion t h a t the dissolution of the marriage will result in grave financial or other hardship to the respondent and t h at i t would in all the circumstances be wrong to dissolve the marriage it shall dismiss the petition. (3) For the purposes of this section hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved.” 48 zy zyx The thinking behii~d the safeguards was much the same in Canada as in England, and the Joint Committee Report quoted the Law Commission’s i d e x a t length.49 The Canadian provision is limited to petitions based on section 47 ‘‘ 7. (1)I t shall be the duty of every barrister, solicitor, lawyer or advocate who undertakes to act o n behalf of a petitioner or a respondent on a petition for divorce under this Act, except where the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, ( a ) to draw to the attention of his (client those provisions of this Act that have as their object the effecting whixe possible of the reconciliation of the parties to a marriage; ( b ) to inforni his client of the marriage counselling or guidance facilities known to him that might endeavour to assist the client and his or her spouse with a view their possible reconciliation; and ( c ) to discuss with his client the possibility of the client’s reconciliation with his or her spouse. (2) Every petition for divorce that is presented to a court by a barrister, solicitor, lawyer or advocate on behalf of a petitioner shall have endorsed thereon a statement by such barriater, solicitor, lawyer or advocate certifying that be has complied with the iequirements of this section.” 49 Report, pp. 126130. See also 8. 6. ILo 48 zyxwvutsrq zyxwvutsrq zy zyxwvut YIAR. 1972 COMPARATIVE APPROACHES TO DIVORCE 123 4 (1) ( e ) and thus applies to both periods of separation but will not apply where.divorces are granted on the bases of the other indications of breakdown listed separately in section 4, such as imprisonment and drug addiction. It should be noted that the Canadian provision gives the court jurisdiction to impose an absolute bar to a decree if the proper financial arrangements cannot be made, not merely to refuse the decree absolute, as in the English section 6. Perhaps the most important case. on safeguards has been J o h n stone v. Johnstone.50 I n this case the husband-petitioner was aged 69, the wife 68, and he had left home in 1960. Following the separation the wife had received $25,000 for her interest in the home, also a car, furniture and $90 a week, which the husband paid regularly. The wife invoked section 9 (1) (f), although the husband was prepared t o continue the weekly payment. She relied on the ‘‘ unduly harsh ” branch of the section rather than on the financial safeguard. Her arguments were that : (a) If the decree absolute were issued she would cease to be a preferred beneficiary under two policies of insurance totalling $7,500. (b) If the decree were granted she would be deprived of her inchoate right to claim against her husband’s estate under the provisions of the Dependants’ Relief (c) By virtue of a 1966 court order the proceeds of the sale of the matrimonial home had been released to the husband on condition that he secured the alimony payments by the conditional assignment of a paid-up pension, and that the decree nisi would leave her with only an unsecured award of maintenance. It was held that her arguments failed because: (a) The husband was prepared to assign the two policies on condition that they would be payable to the wife only if he predeceased her. (b) The provisions of the Dependants’ Relief Act only operate if the husband has made a will; thus the husband was free to divest himself of the whole of his estate and die intestate. If he did so, the wife might be entitled to her share as set out in the Devolution of Estates Act 5 2 but her portion would be minimal. The point was that the wife had no vested right to adequate maintenance after her husband’s death. The judge considered the equivalent Australian provision 53 and Australian cases decided under i t 54 and concluded : “ From this statement i t seems clear that to come within the ‘ harsh and oppressive ’ section of the Australian Act, there 50 51 52 53 54 zy zyxw zyxwvutsrqponm zyxwvutsr [1969] 2 O.R. 765. R.S.O. 1960, c. 104. This Act arovides that the wife. husband or child of a testator, who has not made ade‘quate provision for thkir future maintenance, may apply to the court for a n allowance to be made. R.S.O. 1960, c. 106. This Act makes similar provision in relation to the property of an intestate. Matrimonial Causes Act 1959 (Aust.), No. 104, s. 37 (1). Whittle v. Whittls (1963) 4 F.L.R. 489; Fesguson v. Pergusort (1964) 6 F.L.R. 31; McDonald v. McDonald (1964) 6 F.L.R. 58; Macsae v. Macsae (1967) 9 F.L.R. 441. 124 zyxwvu zy zyxw zyxwv zyxwvu zyxwvut zyxwvu THE MODERN LAW REVIEW VOL.36 must be somethirig other than the inevitable consequences of granting the decree. Whenever a decree absolute is granted, the wife automat,ically loses her rights under the Dependants’ Relief Act. On the analogy of the ‘ harsh and oppressive ’ section of the Australian Act t o our ‘ unduly harsh or unjust section, it would appear that such an inevitable consequence as losing her rights under the Dependants’ Relief Act cannot be the type of thing that Parliament had in mind when drafting section 9 (1) (f). The test of undue harshness or injustice is subjective and connotes a real and substantial detriment t o the respondent beyond such normal consequences of the granting of a decree.” 55 (c) The husband agreed not to disturb the security. As far as the onus of proof was concerned the judge quoted from an article S a : “ Paragraphs (d), ( e ) and ( f ) require [the court] to find, affirmatively, the existence of certain consequences without requiring it to be satisfied as to their non-existence. I would conclude that with paragraphs ( d ) , ( e ) and ( f ) the onus will always be on the party attempting to assert the existence of those consequenct s.” In England there will be no need to consider the Inheritance (Family Provision) Act 1938, because section 26 of the Matrimonial Causes Act 1965 allows a former spouse, who has not remarried, t o apply for maintenancr: from the deceased husband’s estate. However, an argument ccluld be made as to loss of rights under the Matrimonial Homes Act 1967. Presumably the latter argument would be rejected, for iruch a loss, although a “ hardship ” as defined in section 4 (3), is not a “ grave hardship ” but the ordinary result of any divorce. A similar argumeni. was put forward in Ceicko v. Ceicko 57 where the wife invoked section 9 (1) ( f ) of the Canadian Act because the decree would put, an end to her rights under the Dower Act,58 that Act being the only prlotection she had of her continued occupation of the matrimonial hcilme. This loss of protection was not held t o be sufficient to prevent the grant of the decree and she was awarded a lump sum payment in compensation. 55 56 58 At p. 770. Johnstone V. Johnstone was followed in Ferguson v. Ferguson (1970) 75 W.W.R. 237 (Man.Q.B.). In that case the wife resisted the grant of a decree under 8 . 4 (1) ( e ) even though her income was twice that of her husband. The petitioner, who intended to remarry, stood to inherit a large amount after the death of his mother (aged 89). Wilson J. held that the mere possibilities of improve13 financial circumstances were not enough to displace the petitioner’s light to a decree after 16 years apart from his wife. Alan W. Mewett, “ Ilvidence and Degree of Proof ” in SpeciaZ One-Day Programme o n the New Divorce Act and Rules (Law Society of Upper Canada, 57 (1969) 69 W.W.R. 52 (Man.Q.B.). 1968) at p. Ixii. R.S.M. 1970, c. D100. This Act provides for “ homestead rights,” namely, that a husband may not sell the matrimonial home without his wife’s consent and that after the hiisband’s death, the widow receives one-third of the husband’s estate and a life estate in the home. zyxwvut MAIL. zyxwvutsrqpon zyxwvutsrq zyxwv zyxwv zyx zyx 1972 COMPARATIVE APPROACHES TO DIVORCE 125 I n another case 50 the respondent argued that the decree should be refused because the husband intended to remarry and the further demands on his means would inevitably upset his ability and willingness to support the respondent. This intended remarriage, she argued, would prejudicially affect the making of reasonable arrangements for maintenance under the second branch of section 9 (1) (f). It was held that while there might be cases where this would be so, the case under consideration was not one of them. The same argument was made by the wife in Williams V. WilliamsYGo where the husband had limited means and admitted that he could not hope to support both his old family and his hoped-for new family. The judge rejected the wife’s plea and added : “ I would consider i t both unduly harsh and unduly unjust t o t h e petitioner to refuse the decree he seeks. H e has faithfully discharged his financial commitments to his first family, and he discharged his moral commitment to his first wife by marrying her after the birth of his child. Having regard to contemporary mores and the apparent social philosophy which underlies the present Divorce Act, I think this divorce ought to be granted. The petitioner has the legal and moral right to a second chance of marital happiness.” The judge considered the wording of section 9 (1) (f) and concluded that he need only be concerned with the reasonableness of the financial arrangements made a t the time of the divorce: Parliament could not have intended the court to conjecture whether petitioners would continue t o comply with maintenance orders in the years that lay ahead. The wife in Lachman v. L a c h m a n O2 also relied on section 9 (1) (f). Granting the decree, Jessup J.A. commented: “ It cannot be the intention of the statute that only men sufficiently wealthy to comfortably support two women are entitled t o a divorce.” The problem of loss of pension arose for consideration in S m i t h V. Smith? The petitioner, who had been living apart from his wife for some years, was in receipt of a substantial defence services pension. His wife opposed the grant of the decree claiming that it would be unduly harsh. If the decree were granted, the pension would cease on the death of the petitioner, but if the marriage were not dissolved and the respondent were to outlive the petitioner, a proportion of the pension might be paid to her in the discretion of the Governor-General in Council, provided she was worthy of it and had not in the meantime become wealthy. I n addition Mrs. Smith pointed out that her husband did not appear too anxious to marry his mistress if he were freed to do SO and that presumably they would continue living together without, benefit of marriage. So neither zyxwvut zyxwv 59 80 61 63 Grini v. Grini (1969) 68 W.W.R. 591 (Man.Q.B.). (1970) 11 D.L.R. (3d) 326 (N.S.S.C.). At p. 336. 6 2 (1970) 12 D.L.R. (3d) 221 (0nt.C.A.). At p. 226. 64 [1971] 1 W.W.R. 409 (B.C.S.C.). 126 zyxwvu zyxwvu zy zyx zyxwv zyx zyxw VOL.36 THE MODERN LAW REVIEW Mr. Smith nor his mislsess would benefit appreciably by the grant of a decree but Mrs. Smith would lose her pension. McKay L.J.S.C. held that while the 101~sof pension rights might in certain circumstances be a ground for refusing to grant a decree under section 9 (1) (f), the deprivation of pension rights was the normal consequence of the grant of a decree of divorce and as such not unduly harsh. Mr. Smith’s plans for the fiiture were not relevant; the marriage of the Smiths was finished in sill but name and he was entitled to the peace of mind that presum:i.bly would flow from the decree. It now seems that neither a husband’s intended remarriage nor his lack of desire to do so will necessarily make a wife’s plight more unjust. TRENDS Finally, it may be of interest to examine the effect of the new legislation on the number of decrees granted in Canada and the grounds on which petitions are based.05 The divorce rate hitd been climbing steadily in the 1960s and, as expected, the greater availability of divorce since 1968 has led to an enormous upsurgi: in the number of petitions filed. The rates of divorco prior to the Act are shown below: Decrees Granted I’roairi res Newfoundland (pop. 493,396) Prince Edward 1sl;unc (pop. 108,535) Nova Scotia (pop. 756,039) New Briinswick (pop. 616,788) Quebec (pop. 5,780,845) Ontario (pop. 6,9G0,870) Manitoba (pop. 963,066) Saskatchewan (pop. 955,344) Alberta (ppp. 1,463,203) British Columbia (pop. 1,873,674) Yukon Territory (pop. 14,382) Northwest Territories (pop. 28,738) Canada (pop. 20,014,880) 65 1967 11 1968 11 16 18 18 20 323 406 394 497 237 166 292 143 ‘226 988 ‘727 606 4’,087 4,101 4,341 5,036 477 465 1965 3 1966. I 16 zyxwv 443 62 b 312 32 1 399 384 1,346 1,567 1,73G 1,916 1,961 2,124 2,731 2,220 12 21 21 30 6 3 6 11 - 8,974 7 10,239 11,156 11,313 Unless otherwiss stated, all figures were obtained from the Central Divorce Registry and the Dominion Bureau of Statistics, Ottawa. zyxwv zy zyxwv zyxw zyxw zyxwvut .JIAR. 1972 127 COMPARATIVE APPROACHES TO DIVORCE Although too little time has passed since the coming into effect of the Act for meaningful statistics concerning the number of decrees granted, information is available on the number of petitions filed and the grounds alleged. Petitions Filed Provinces Newfoundland Prince Edward Island Nova Scotia New Brunswick Quebec Ontario Manitoba Saskatchewan Alberta British Columbia Yukon Territory Northwest Territories Canada July 2 6 G -December 1968 61 41 429 237 3,076 8,648 889 596 2,456 3,296 31 17 31 19,767 1969 208 94 896 603 6,446 14,459 1,605 1,081 4,980 6,174 61 21 35,418 The number of petitions filed in the first nine months of 1970 indicated a very slight decrease. Even if only three-quarters of the petitions filed are successful, this still points t o an immediate trebling of the divorce rate in Canada. It should be remembered that these petitions represent a backlog of broken marriages, some of them dead for twenty years or more. An analysis of the grounds alleged in petitions shows that Grounds For Divorce Alleged in Canadian Petitions 1969 One of Multiple Grounds 2,914 39 13 10 65 42 6,096 6,668 82 1,061 Adultery Sodomy Bestiality Rape Homosexuality Bigamy Physical cruelty Mental cruelty Imprisonment Addiction to alcohol 56 Addiction to narcotics Whereabouts of spouse unknown 323 Non-consummation 97 Three years’ separation 3,848 Five years’ separation 1,304 Total petitions filed : 36,418 66 The date Gn Single Grouiid 9,221 2 1 4 26 18 268 567 43 160 4 116 123 13,582 1,691 zyxwv which the new Act came into effect. 128 zyxwvut zyxw THlE MODERN LAW REVIEW . VOL. 35 separation for three YEars has become the most frequently alleged ground across Canada ,tnd is the sole ground on which one-third of all 1969 petitions is bawd. Adultery is the second most used ground, being alleged as sole ground in approximately one-quarter of the 1969 petitions; cruelty follows third and is most often alleged in combination with other grounds. Information concer iiing the grounds alleged in petitions filed in Toronto 87 in the first two full years of operation of the Act shows the pattern unchanged. Of a total of 11,915 petitions filed in Toronto between July 1968 and July 1970 3,664 were based on adultery, 1,077 on cruelty, 5,838 on three years’ separation and 923 on five years’ separatiion. Similar information provided by the Registry of Essex County, Ontario,6S indicates that adultery is now alleged slightly more frlequently than three years) separation, which was a t first the more popular ground. Far from proving (3 “ Casanova’s Charter,” the first year of operation of the Act 33howed 23,807 female petitioners and only 14,309 males, although, of course, many of the female petitioners are long-deserted wive,j who had not previously been entitled to relief. The pattern of almost twice as many female as male petitioners is continuing. The Law Commission has expressed the hope that spouses might Fiefer to wait for two ylears and petition on the ground of separation rather than seek to establish an offence, such as adultery, thereby avoiding the hostility inherent in such proceeding^."^ It is somewhat disappointing to find ithat adultery persists as a popular ground for petitions in Canadia. The continued reliance on that ground confirms the opinion of the Canadian Joint Committee that an offended spouse wants immediate relief, where available, and is not prepared to wait for thi ee years in order to avoid entanglement with the matrimonial offence. It is also probable that Canadian lawyers prefer, where possible, to institute proceedings on the ground of adultery, because they are familiar with the nature of the procedures involved and have more confidence in advising their clients of the likelihood of success. This preference for known paths may also explain why cruelty is alleged so frequently in combiination with other grounds and so rarely on its own, as it is, too, a new concept to Canadian lawyers. zyxwvu zyxwv RUTHL. DEECH.” 67 68 69 * zyxwvutsrq zyxwvu zyxwvutsrqponm Information provided by the Registry of the Supreme Court of Ontario and relating to a population of 2 million. Population 290,000, chiefly the inhabitants of the city of Windsor. Reform of the Grounds of Divorce: T h e Field of Choice, Cmnd. 3123 (1966), para. 93. M.A. (Branders), M.A.(Oron.) ; Fellow of St. Anne’s College, Oxford. zyxwvu TRENDS IN COMPARATIVE CONS'I'ITUTIONAL LAW DOCTRINES of constitutional law have been subject to reconsideration throughout the world. This paper will examine the effect of selected modern cases from several jurisdictions. It will be suggested that, in the light of these cases, some fundamental doctrines of English constitutional law are open to re-examination. Particular attention will be given to implied repeal, the possibility of securing statutes against the effect of that doctrine by mcans other than the traditional forms of entrenchment, and the emerging concept of justiciability in constitutional law. It will be submitted that the traditionally accepted concept of implied repeal is no longer valid; that recent cases show a trend to the acceptance of statutes of a fundamental nature, without entrenchment, yet not subject to implied repeal ; and that an emerging doctrine of justiciability can be found in modern constitutional law. It is a general view that United Kingdom and New Zealand courts have no power to declare an Act of Parliament invalid. However, there do not appear to be modern local cases directly in point in either jurisdiction.' The doctrine rests, in so far as it has a judicial basis, on obiter dicta. A similar position obtained, until recently, in Israel.2 All three countries lack a comprehensive written constitution. I n none of these jurisdictions has there yet been a direct case on the validity of single or double entrenchment. The Privy Council, sitting as a Singhalese courtY3and also as a court of Sierra LeoneY4has held that a form of entrenchment may be effective under a written constitution. These cases confirmed a trend initiated, in regard to sovereign states, in South Africa.5 The position of non-sovereign law-districts, such as New South Wales, had long been clear. Entrenchment operated to invalidate laws in such jurisdictions.s To date much of the discussion has centred on the question of the effectivity of entrenchment. Recent constitutional law cases in several jurisdictions will be examined with a view to finding alternatives to entrenchment for states lacking a full written constitution. An allied problem is that of the effect of zy zyxwv zyxwvuts zyxwvutsrq zyxwvu zyxwvut zyxwvuts 1 Cf. Simpson V. Att.-Gen. [1955] N.Z.L.R. 271, 286 and A. V. Dicey, The Law of the Constitution, 10th ed. (1960), pp. 90-91. The question was discussed in R. v. Fineberg [19G8] N.Z.L.R. 119 but the Court of Appeal carefully reserved its opinio3, R . v. Fineberg ( N o . 2) [1968] N.Z.L.R. 2 Cf. Bassul v. Minister of the Interior (1965) 19 (1) Pislcei Din 337, 349. Bribery Commissioner v. Ranasinghe [1965] A.C. 172. Aka7 v. Att.-Gen. of Sierra Leone [1970] A.C. 853. Harris v. Minister of the Interior [1952] 1 T.L.R. 1245. Att.-Gen. for N.S.W. v. Trethowan [1932] A.C. 526. 443, 450. 4 5 8 129