Marriage and Divorce Laws of the World Part 41

7. Neglect of husband for one year to provide common necessaries of life.

8. Such indignities as render conditions intolerable.

9. Vagrancy of husband.

10. Conviction before marriage (unknown to other spouse) for felony or infamous crime.

11. Pregnancy of wife by another man at time of marriage, unknown to husband.

Limited divorces are not granted in this State.

CHAPTER XXVI.

DOMINION OF CANADA AND NEWFOUNDLAND.

The Dominion of Canada now consists of the Provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan, together with certain territories not as yet included in any Province.

The Canadian Const.i.tution, similar in principle to that of Great Britain, is embodied in the British North America Act of 1867 (30 Vict. c. 3).

This act, which was pa.s.sed by the Imperial Parliament, created the federation now styled the Dominion of Canada, and a.s.signed to the Dominion Parliament power "to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the cla.s.ses of subjects by this act a.s.signed exclusively to the Legislatures of the Provinces."

One great distinction between the Canadian Const.i.tution and the Const.i.tution of the United States of America is that powers not specifically granted to the Provinces are reserved to the Dominion Government, whereas under the American Const.i.tution powers not specifically granted to the Federal Government are reserved to the States, or to the people.

Marriage and divorce are specifically set forth in the Canadian Const.i.tution as a branch of legislation exclusively within the control of the Dominion Parliament, but although forty-three years have pa.s.sed since the act became operative the Dominion Parliament has so far enacted only two statutes concerning the subject. The first act (May 17, 1882) legalized the marriage of a man with his deceased wife's sister, and the second (May 16, 1890) legalized the marriage of a man with his deceased wife's sister's daughter.

The Dominion of Canada shares with Ireland the distinction of having no law permitting a judicial decree of divorce.

However, by one clause of the British Act of North America there was preserved in full force the laws and judicial system of the several Provinces until the laws should be repealed or the courts abolished by competent authority.

Consequently, four of the nine Provinces, namely, British Columbia, New Brunswick, Nova Scotia and Prince Edward Island, have their individual laws of divorce and divorce courts.

Of the eight millions of people living in Canada six millions have no possibility of divorce except by a special act of the Dominion Parliament.

The Dominion Parliament has power to grant an absolute divorce for any cause, but it never has done so except for adultery.

Divorce pet.i.tions or bills are, as a matter of practice, introduced first in the Senate, where there is a standing committee to deal with them.

For the Provinces of Ontario, Quebec and Manitoba, and the Northwest and other Territories, the Dominion Parliament is the only authority which can grant an absolute divorce.

MARRIAGE.--Legislation concerning the formal requirements and solemnizations of marriage is still within the exclusive authority of the legislatures of the Provinces.

As to the impediments which arise from blood and marriage, the law throughout the Dominion of Canada is in agreement with the law of England, which is based upon the 18th chapter of the Book of Leviticus.

It is expressly provided by the act, 28 and 29 Vict. c. 64, that every law made or to be made by the legislature of any British possession, "for the purpose of establishing the validity of any marriage or marriages contracted in such possession, shall have and be deemed to have had from the date of the making of such law the same force and effect for the purpose aforesaid within all parts of Her Majesty's dominions as such law may have had or may hereafter have within the possession for which the same was made. Provided that nothing in this law contained shall give any effect or validity to any marriage unless at the time of such marriage both of the parties thereto were, according to the law of England, competent to contract the same."

VALIDITY OF FOREIGN DIVORCES.--When the validity of a foreign divorce is considered by the Canadian courts the judges apply the strict rule of refusing to recognize a decree of divorce p.r.o.nounced by a court within whose jurisdiction the parties had not a bona fide domicile.

The courts also hold that a marriage celebrated in Canada between persons domiciled there is in its nature indissoluble except by death or by the act or decree of the Dominion Parliament, or a Canadian court of competent jurisdiction, and that no judgment of a foreign court dissolving such a marriage will be recognized in Canada.

This rule invites, and has received, such severe criticism for its injustice that it cannot long be maintained by such tribunals of learning and integrity as the courts of Canada.

Suppose a Canadian man and woman domiciled in Toronto should intermarry there, and afterwards acquire a joint domicile of twenty years' duration in New York City. If, after that period, the wife should obtain in the courts of the State of New York a divorce on the grounds of her husband's adultery, and should remarry another man, upon her return to Canada it would be manifestly unjust to treat the divorce and second marriage as null and void.

Some of these days the Canadian courts will be called upon to consider the legal effect of a divorce obtained upon statutory grounds in England in a suit between two persons who were married in Canada and at the time of such marriage were domiciled in that country. Perhaps then the rule we have mentioned and criticised will be relaxed.

The Island and Colony of Newfoundland, although a British colony in North America, is not yet incorporated as a part of the Dominion of Canada. It has its own governor, legislature and judicial system entirely separate from the Dominion and its own marriage and divorce law.

The jurisdiction of Newfoundland extends not only over the island by that name, but also over the whole of the Atlantic coast of Labrador.

AGE REQUIREMENTS.--The legal age for marriage in British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland is fourteen for a male and twelve for a female. In Ontario both males and females must be at least fourteen years of age.

PARENTAL CONSENT.--In British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland parental consent is necessary for both males and females under twenty-one years of age.

In New Brunswick and Ontario parental consent is required for males and females under eighteen years of age.

In British Columbia an appeal may be taken to the courts if consent is refused by parent or guardian.

CELEBRATION.--Marriages may be solemnized by duly qualified clergymen of every religious denomination, or by a judge, justice of the peace or other magistrate.

Unless banns are published a license must be produced for each marriage, and can only be obtained from the proper local authority upon affidavit or declaration of one of the parties to the intended marriage, showing that no legal impediment exists and that the proper consents have been obtained.

The competency of a Protestant minister to marry two Roman Catholics in the Province of Quebec was called in question by the leading case of Delphit v. Cote, reported in the Quebec Reports, 20 S. C. 338. The plaintiff, who had been baptized as a member of the Roman Catholic Church, was married to the defendant, who, at the time at least, professed the same belief, by a minister of a Protestant denomination, by virtue of a license issued in due form. Subsequently an ecclesiastical court of the Catholic Church declared the marriage null on the ground that two Roman Catholics could only be married by a Roman Catholic priest. Upon appealing to the civil court for an annulment of the marriage because of the ecclesiastical decree, it was held that the ecclesiastical court was entirely without jurisdiction and that the marriage was in all legal respects good and binding.

MARRIAGES WITH INDIANS.--A Christian who marries an aboriginal native or Indian cannot exercise in Canada the right of divorce or repudiation of his wife at will, although following the usages of the tribe or "nation"

to which his Indian wife belongs such divorces and repudiations are customary and regular.

ANNULMENT OF MARRIAGE.--In any of the Provinces, or in Newfoundland, the courts may annul marriages on the ground of fraud, mistake, coercion, duress or lunacy.

FOREIGN MARRIAGES.--The courts of Canada and Newfoundland recognize a marriage concluded in a foreign country as valid if it was performed in accordance with the laws of the foreign country, if each person was competent to marry, according to the laws of the country of his and her citizenship, and if the marriage was not in violation of the general laws and usages of Christendom.

ONTARIO.--The High Court of Justice in this Province has jurisdiction where a marriage correct in form is ascertained to be void _de jure_ by reason of the absence of some essential preliminary to declare the same null and void _ab initio_; but nothing short of the most clear and convincing testimony will justify the interposition of the court.

As we have observed before, there is no divorce court in the Province.

Every married woman is ent.i.tled to hold and alienate as her separate property all wages and profits acquired by her in any separate occupation which she may conduct on her separate account.

QUEBEC.--This Province, which is composed largely of Roman Catholic inhabitants of French ancestry, treats marriage as a religious contract.

The system of jurisprudence in Quebec is an admixture of the Code Napoleon, the _coutume de Paris_, and the common law of England. The provisions of the Civil Code and Code of Civil Procedure of the Province are largely of French origin.

Marriage must be solemnized openly by a competent officer recognized by law and must be preceded by the publication of banns, unless a license is obtained. A license for a marriage by a Protestant clergyman must be issued from the office of the Provincial Secretary.

A marriage contracted without the free consent of both parties, or of one of them, can only be attacked by such parties themselves or by the one whose consent was not free.