Law 30 – Family Law 4.1 I. Readings:
Please read the following sections in the family law section of your study guide: 1. The Changing Family 2. Sources of Family Law 3. Marriage 4. Marriage Contracts 5. Marriage Ceremony 6. Obligations of Marriage 7. Cohabitation Relationships 8. Parenting 9. Marriage Breakdown 10. Separation 11. Divorce 12. Procedures of Divorce 13. Children and Separation or Divorce 14. Access 15. Maintenance and Support Please note the following main points from this week’s readings:
II.
1. The concept of “family” has changed drastically over the past 25 years. Divorce rates have gone up, we are now involved in a national debate over same sex marriages, and common law arrangements are much more common. As always, changes in society result in changes in the law. This applies to family law as well. 2. Sections 91 and 92 of the Constitution Act are sources of family law. Section 91 outlines Federal responsibility, whereas section 92 outlines provincial responsibility. We also derive family law from individual case law. 3. Marriage changes the legal status of an individual, in that marriage is a form of contract. Individuals agree to take on certain legal responsibilities by entering into a marriage. Canadian law recognizes civil and religious marriages. 4. Couples may live together without formal marriage. In this case, legal obligations will come from case law that has existed before. 5. During a marriage, both parents have the right to make decisions regarding major issues such as the education and religion of their children. They are also both jointly responsible for the financial affairs of their children.
6. Divorces are governed by the Divorce Act. A divorce is granted based on evidence of adultery, cruelty, and separation for one year. 7. Prior to 1968, one spouse was always assigned fault in a divorce. After 1968, nofault divorces were granted. This change in legislation led to an increase in divorce rates in this country. 8. If both parties in a marriage file for divorce, they are known as co-petitioners. One spouse can initiate divorce proceedings, the other party may agree or contest the divorce. If a party contests the divorce, they must file a counter-petition. 9. The welfare of children becomes a concern in the breakdown of a marriage. Custodial parents have the legal obligations for children where both parents had this obligation before the marriage breakdown. When parents cannot agree to the custody of children, the courts will decide. 10. Access to children by parents, is based upon the needs of children, and not based upon the needs or parents.