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Social aspects of divorce legislation in British Columbia : an exploratory study of four major aspects of divorce legislation in British Columbia and their social implications with an examination of comparative legislation suggesting reforms Boyd, Marion Carole

Abstract

The present study is undertaken to explore social aspects of divorce legislation in British Columbia. The specific areas of procedures, grounds, domicile, and children of the marriage are examined as they would appear to have most significance for social welfare. The study attempts to draw attention to the relationship between law and human relations and to critically examine British Columbia divorce legislation, its functions and dysfunctions, in terms of the ideal whereby the law acts as an enabling device aimed at problem-solving. Chapter I of the study reviews the historical significance of attitudes, customs, and law still affecting divorce legislation in British Columbia and points out areas where they may presently be divorced from social reality. Chapter II, III, IV, and V examine specific areas of divorce legislation and their significance in modern society in terms of a problem solving approach. Chapter VI involves a survey of expert opinion on matters pertaining to British Columbia divorce legislation. The purpose here is to lend credibility to social problems around divorce legislation outlined in preceding chapters based on library research. Chapter VII is a short survey of comparative divorce legislation in a variety of other jurisdictions. This survey indicates possible solutions to some of the social problems arising from legislation in British Columbia. Throughout, the study method essentially involves library research with the exception of Chapter VI. A small sample of experts in a variety of fields interested in the question of divorce were interviewed. Experts include clergymen, politicians, lawyers, judges, social workers, etc. The interviews were structured by means of an interview schedule. Initial exploration carried out in this study indicates that the adversary nature of British Columbia divorce legislation with its limited grounds is not conducive to problem-solving and appears instead to create new problems for those already suffering from damaged interpersonal relationships. A variety of social problems arising from the legislation are more closely defined and documented by reading and expert opinion. Some of these social problems involve the fact that in undefended divorce cases the true facts are unlikely to emerge. The adversary system prevents the parties concerned from taking a mature look at what caused the marital breakdown. The law penalizes those who attempt reconciliation due to factors involved in condonation. Collusion bars also discourage discussion of matters of mutual concern or serve to keep such discussion secret. In some cases even though all personal and social functions of marriage have ceased to exist, the legal tie must be maintained because neither partner has committed adultery or is willing to engaged in fraud. In other cases, those who have grounds for divorce are unable to obtain same because of legal costs and difficulties in establishing domicile or travelling to a court that has jurisdiction. Scant investigation of proposed plans for children of the marriage is carried out unless the custody is contested. In general, British Columbia divorce legislation does not provide for any investigation concerning what really causes a marriage to fail. It provides no relief for many whose marriages have broken down beyond repair and no impetus towards problem-solving for others who might become reconciled or at least divorced with a minimum of secondary damage and with a recognition of responsibilities involving children. Divorce legislation in other countries is suggested as offering possible solutions for many of the problems inherent in our own law. Literature from the United States of America concerning Family-or Matrimonial Courts is seen in this study as the most fruitful. Hopefully then, the documentation of social problems associated with British Columbia divorce legislation and suggested solutions for change will aid others in future research of a more specific nature.

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