Little Known Family Law Facts #6

Section 60(1) of the Law and Equity Act says that:

"For all purposes of the law of British Columbia, a married man has a legal personality that is independent, separate and distinct from that of his wife and a married woman has a legal personality that is independent, separate and distinct from that of her husband."

The purpose of this subsection is to cure a problem of the antique common law on domestic relations arising from the unity of the person doctrine. Under this doctrine, a married man and woman were treated as one person by the law, although one person under the man's control. Among other things, this meant that upon marriage the husband took all of his wife's property, but also became responsible for the law suits she had started and those started against her, and the wife became able to pledge her husband's credit.

The doctrine is expressed by the Latin maxim sunt quasi unica persona, quia caro una, sanguide unus which, although my Latin is pretty weak, means something to the effect of "they are as if one person, with one heart and one blood."

The Law and Equity Act is chock full of little gems like this, and except for the dreadful portions on mortgages and foreclosures, is well worth a read. For the law nerds in the crowd, the act also contains at s. 2 the enactment of the 19 November 1858 proclamation of Governor Sir James Douglas by which the laws of England were adopted as the laws of the Colonies of British Columbia and Vancouver Island.

Little Known Family Law Facts #5

Section 123(1) of the Family Relations Act forbids court actions for jactitation of marriage. "Jactancy" is a vain boasting; "jactitation of marriage" is a false boasting of one's marriage to a person by which a popular belief may arise that the parties are in fact married.

Until the short-sighted enactment of s. 123, originally s. 4 of the 1972 Family Relations Act, someone who had been the victim of jactitation of marriage could sue the jactitator for damages under the common law.

Little Known Family Law Facts #4

There's no such thing as a "legal separation." At least not anymore.

There were once two types of divorces, a divorce à mensâ et thoro and a divorce à vinculo matrimonii. The first kind was a divorce "from bed and board" and freed married spouses from their common law obligation to cohabit without actually severing the marriage; this was very useful for those whose religion forbade them from unhitching once hitched. The second was an absolute divorce which actually terminated the marriage.

The power to make divorces à mensâ et thoro was stripped from the church in the first commonwealth legislation on divorce, the English Divorce and Matrimonial Causes Act of 1857. Under s. 7, the court received the power to make a "judicial separation:"

"No Decree shall hereafter be made for a Divorce à Mensâ et Thoro, but in all Cases in which a Decree for a Divorce à Mensâ et Thoro might now be pronounced the Court may pronounced a Decree for Judicial Separation, which shall have the same Force and the same Consequences as a Divorce à Mensâ et Thoro now has."

This legislation became the law of the colonies of British Columbia and Vancouver Island on 19 November 1858 by the proclamation of Governor Sir James Douglas, and even survived as s. 10 of the first Family Relations Act in 1972. Under s. 10, someone who would be entitled to a divorce under the federal Divorce Act could apply for a judicial separation, as long as the spouse had lived in the province for at least ten months.

The 1972 Family Relations Act was repealed by the 1978 Family Relations Act. The new act did not carry s. 10 forward, and accordingly there has been no statutory authority for the judicial separation since that time.

Little Known Family Law Facts #3

The thing that was "equal" about British Columbia's Equal Guardianship of Infants Act of 1948 was that married women could also have guardianship of their children, both during their marriages and after.

Little Known Family Law Facts #2

Under s. 70 of the provincial Evidence Act, a judge of the Provincial Court may inquire into and make recommendations to the Supreme Court in a report regarding a family law dispute, whether or not a family law proceeding has been commenced at the time of the judge's inquiry.

Little Known Family Law Facts #1

The recent non-crisis about the validity of same-sex marriage involved basic legal concepts in international law and the law on domestic relations that could have been uncovered with a little bit of effort on the part of whomever chose to ignite the non-firestorm. Herewith, then, the founding of an irregular series about actually little know actual facts in family law.

The federal Assisted Human Reproduction Act regulates artificial reproduction but also makes it illegal to create, or pay someone to create, a chimera or transplant a chimera into a human or non-human life form. Creepy but true.