COMPARATIVE APPROACHES TO DIVORCE: CANADA AND ENGLAND
| Date | 01 March 1972 |
| Published date | 01 March 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01322.x |
THE
MODERN LAW REVIEW
Volume
35
March
1972
No.
2
COMPARATIVE APPROACHES TO DIVORCE
:
CANADA AND ENGLAND
IN
July 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 it
easy to 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 ad~ltery.~ The
courts
of
Quebec (with approximately one-quarter
of
the population
of Canada) and Newfoundland were unable to grant divorces at 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 Ch~ice.~
In coming to its
conclusions, the Canadian Committee assumed the same background
and the same opinions concerning marriage as had the Law Com-
mission. The Report, however, favoured a combination
of
1
An Act Respecting Divorce, S.C., 1967-68, c.
29.
2
January
1,
1971.
3
Cruelty
was
an additional ground
for
dissolution
in
Nova Scotia.
4
Putting Asunder: A Divorce Law 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
114
THE I!dODERN LAW REVIEW
VOL.
36
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
CONTINUED COHABITATION
Divorce Act
1968
“
3.
.
.
a
petition for divorce may be
presented to
a
court by
a
hwband
or
wife, on the ground that the respon-
dent, since the celebration of the
marriage,
(Canada)
...
,
(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 Act
1969
“2.
(1)
The court hearing
a
petition
for divorce
shall
not hold the mar-
riage to have broken down irretriev-
ably unless the petitioner satisfies
the
court of one
or
more of the following
facts, that
is
to say-
(England)
...
(b)
that the respondent has
be-
haved in such
a
way that the
petitioner cannot reasonably be
expected to live with the respon-
dent
”;
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 considera-
tion in Canadian cases deciided under this section is, did cohabitation
become intolerable? This is more interesting for the purpose
of
comparison.
In
Lacey
v.
Lacey, Winney
v.
Winney, Weiss
v.
WeissY6
Wright
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
“
In 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 at the instance of one of them find it intoler-
able
?
”
This particular problem is, of course, partly resolved in
the English legislation by the provision of section
3
(4)
for a six-
month period of living together after the behaviour complained of.
In
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 intoler-
ability of continued cohatiitation
)’
and the assumption that future
6
[1970]
1
O.R.
279.
8
At
p.
285.
7
At
p.
282.
9
(1969)
3
D.L.R.
(34
551
(N.S.S.C.).
10
(1969)
5
D.L.R.
(3d)
543,
548 (Man.C.A.).
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