| 作者 |
 [ZT] 新婚姻法颁布后大陆婚恋市场的九级地震和各类女性的最佳对策 |
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[ZT] 新婚姻法颁布后大陆婚恋市场的九级地震和各类女性的最佳对策 -- laozhong - (2345 Byte) 2011-8-18 周四, 15:30 (2561 reads) |
brisa
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加入时间: 2008/04/12
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作者：brisa 在 海归酒吧 发贴, 来自【海归网】 http://www.haiguinet.com
History of Family Law in Ontario
• Five areas
– Legal status of husband and wife
– Physical relationship of husband and wife
– Property of husband and wife
– Custody of children
– Support of one spouse by the other
– Divorce
• Three time periods
– Pre-19th century
– 19th century
– 20th century
Pre-19th Century
Legal Status of Husband and Wife
• Unity of legal personality – husband and wife were one person in law, the husband
• Married woman had no right to
– own property
– enter into contracts on her own behalf
– sue or be sued
• Spouses could not sue each other
Physical Relationship Between Husband and Wife
• Both spouses had legal and religious duty to have sexual relations with each other
• Wife had no legal right to refuse sex with husband – no rape of wife by husband
• Husband could sue another man for criminal conversation for having sexual relations with his wife
• Husband had right of physical chastisement – use of physical force to discipline wife
Property of Husband and Wife
• Married women not legally able to own property
• Wife’s personal property become the husband’s
• Wife’s real property became husband’s to use
• On separation or divorce husband kept all property originally his or that had become his
Custody of Children
• Children were seen as property of the husband
• Husband had absolute right to make decisions about children
• Husband had absolute right to custody
Support of One Spouse by the Other
• Husband was required to support wife during marriage
• Alimony was available to wife in limited circumstances if breakdown of marriage was caused by husband
• Alimony rules
– Parties living separate and apart; and
– Husband
• had committed adultery, or
• was guilty of cruelty, or
• had deserted wife for two or more years, and
– Wife
• had not committed matrimonial offence
• was willing to take her husband back
• Amount designed to allow wife to live “modestly and in retirement”
• Alimony continued only so long as wife remained chaste
Divorce
• Originally no divorce
• Then no civil divorce
– Ecclesiastical court proceeding plus
– Private member’s bill in Parliament
• Divorce available to husband only.
• Adultery of wife the only ground
19th Century Reforms
Legal Status of Husband and Wife
• Married woman could
– buy and own property
– sue and be sued
• Husband and wife could not sue each other
Physical Relationship Between Husband and Wife
• Husband’s right to physically discipline wife ended
Property of Husband and Wife
• Married Women’s Property Act passed in the 1880’s
– gave married women right to own property separately from their husbands
– Created the presumption of advancement between husband and wife
• Presumption of advancement – if husband placed property in wife’s name it was presumed that he intended to make a gift of the property to her
• Presumption of resulting trust – that a person who pays for property and places it in the name of another intends that person to hold the property in trust for the donor
• On marriage breakdown property divided strictly on the basis of ownership or direct financial contribution
Custody of Children
• Children no longer viewed as property
• Children now seen to need special care and nurturing
• Growing recognition of need to consider best interests of children in the event of a marriage breakdown
• Infants Custody Act passed in 1886 making “best interests of the child” the basis for granting custody
• Mothers usually granted custody of “children of tender years”
Support of One Spouse by the Other
• Alimony continued, still tied to conduct of the wife
• No legislation but judicial changes
– Doctrine of constructive desertion – if wife left marriage because of husband’s misconduct, husband deemed to have deserted wife
– Wife was required to accept husband’s return for a reasonable time only
Divorce
• Judicial divorce in England established in 1857
– Ecclesiastical courts abolished
– Action for criminal conversation abolished
• Grounds until 1925
– Husband – wife’s adultery
– Wife – husband’s
• incestuous adultery
• bigamy
• sodomy
• bestiality
• rape
• adultery coupled with cruelty
• adultery coupled with desertion for at least 2 years
• After 1925, adultery the only ground for both husband and wife
• No judicial divorce in Canada
20th Century
Legal Status of Husband and Wife
• Family Law Reform Act (1978)
– Abolished unity of legal personality
– Allowed husbands and wives to sue each other in tort
Physical Relationship Between Husband and Wife
• Criminal Code amended (1983) – either husband or wife can be charged with sexual assault against the other
Property of Husband and Wife
• Family Law Reform Act (1978)
– recognized that division of property on a marriage breakdown should not be decided simply on the basis of ownership or direct contribution to the property
– Spouses are entitled to share in property based on contribution to the marriage
– Assets categorized as “family assets” or “non-family assets”
• family assets divided equally
• Non-family assets divided if division of family assets was inequitable
– Abolished presumption of advancement
• Family Law Act (1986)
– Continues to recognize marriage as a partnership
– Property is divided by equalization of net family property
Support of One Spouse by the Other
• Support law is changed by Family Law Reform Act (1978), and continues under the Family Law Act (1986)
• Support can be paid by either husband or wife
• Support is based solely on need of the dependent party and ability of other party to pay
• Conduct is irrelevant
• The term “alimony” is no longer used
Divorce
• Divorce Act (Ontario) brought judicial divorce to Ontario in 1930
– Husband’s ground – wife’s adultery
– Wife’s grounds – husband’s adultery, rape, sodomy, bestiality or bigamy
• Divorce Act (1968) – first Canada-wide divorce legislation
– Fault grounds
• Adultery
• Cruelty
• Sodomy
• Bestiality
• Rape
• Homosexual acts
– No-fault grounds
• 3-year separation
• 5-year separation if divorce action started by divorcing party
• Divorce Act (1986)
– Fault grounds
• Adultery
• Cruelty
– No-fault ground – one-year separation
作者：brisa 在 海归酒吧 发贴, 来自【海归网】 http://www.haiguinet.com
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