In marriage, women haven’t always been equal

Joyce Blond Frank B.A., B.C.L., LL.M.

May, 2010

In 1857, a commission was created to consolidate the laws of Eastern Canada. Up to that point, the laws of Quebec were largely based on old French law.

It was July 1, 1866, before the commissioner’s work, the Civil Code of Lower Canada, became law and it was that code that existed when I started practicing law. In those days, mothers were usually married women ranked with incapable persons and minor children. It was the husband’s obligation to protect his wife and furnish her with the necessities of life in accordance with his means.

This was considered to be part of the natural order of things. However, in order to permit him to carry out his obligations, his wife had to live with him at the residence of his choice and to follow him wherever he might choose to go. She was also obliged by law to obey him. The duty of obedience was considered to be of public order and the very essence of marriage. And marriage was forever, to be dissolved only by death.

Quebec had no divorce law. Only a “separation from bed and board” was possible under very specific limited conditions, such as “outrage, ill-usage and grievous insult.” Mutual consent was not grounds for separation. In addition, the husband could obtain a separation on the ground of his wife’s adultery, but a wife could only obtain a separation if the husband’s “concubine” was kept in the family home.

This law was not changed until 1954, at which time married women were also removed from the list of incapable persons. Fortunately, the courts would bend the law by considering adultery a grievous insult, thereby permitting married women to obtain a separation without the “other woman” as a roommate.

If the wife left the family residence, she could forfeit her right to support. Divorces were obtained by passing a private member’s bill before a Senate committee of the federal Parliament. This was possible only because under the constitution, marriage is of federal jurisdiction. Even then, some jurists argued that these divorces should not be valid under Quebec law.

The power of married women in those days was very limited. Without the authorization of her husband she could not appear in judicial proceedings, dispose of property, enter into a contract or even purchase household necessities. Unmarried women could do all these things, so the limitations placed on married women were not because of their sex, but were justified on the ground of fundamental laws of society on marriage and family, which vested marital authority in the husband.

When the husband refused to give his authorization, a married woman could apply to the courts to request a judge’s authorization. It was always emphasized that this was not meant to increase her rights, but rather to give her the opportunity to exercise them.

Without appropriate authorization, any act entered into by the wife would be considered null and void. Even where the husband was still a minor, namely under the age of 21, and the wife was over 21, she still required his authorization. One of the few exceptions was the federal Bank Act, which did permit her to make deposits and withdrawals. Another was in the case of wills; even married women were permitted to make them.

Things improved a bit in 1931, when the law was amended to permit women who were separate as to property by virtue of a marriage contract to perform acts of administration, purchase necessities, rent a place to live and borrow money.

The rights of the husband over the wife extended to the children of the marriage. Although both had paren­tal authority over their children, this was exercised solely by the husband unless a court ordered otherwise for the benefit of the children in the event of separation. This caused serious problems when a child became ill during the absence of the father and the mother had difficulty or was unable to obtain medical treatment for that child.

Major changes to the rights of married women occurred in 1964.

The obligation to obey was removed, the duty to cohabit became reciprocal, both spouses together assumed the moral and material direction of the family and the wife was given full capacity with regard to her assets, subject only to those restrictions imposed by the matrimonial regime of the parties.

In 1975, the Quebec Charter of Human Rights and Freedoms was adopted and in 1980 the entire section of the Civil Code dealing with family law was amended.

Today, under both the Quebec Charter of Human Rights and Freedoms and the Civil Code of Quebec, discrimination based on sex or civil status is illegal. Husbands and wives both have full enjoyment of their civil rights. This is considered to be an essential attribute of human beings by virtue of their very existence.

Today, the law has evolved to the point where both also have the capacity to exercise those rights.