Legal Ease: How the head of the household became a team player

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We hear about how women’s rights have increased over the years. Today, as Father’s Day approaches, let’s consider how our laws have affected the position of the man within the family over the years.

In 1866 when the Civil Code of Lower Canada (now the Quebec Civil Code) became law, a boy could marry at age 14, a girl at age 12. However, until they reached the age of 21 parental consent for that marriage was required. If the parents disagreed, the consent of the father alone sufficed.

Today, both boys and girls can marry when they reach age 16 and it is the consent of the people who have parental authority that is required when a minor child is involved.

The father is no longer the supreme parent.

He is also no longer the controlling director of the family unit. The spouses in the marriage have always owed “respect, fidelity, succor and assistance” to one another.

In bygone days, the husband owed protection to his wife, and she owed obedience to him. Today the “spouses together take in hand the moral and material direction of the family, exercise parental authority and assume the tasks resulting therefrom.”

In the past, the wife was obliged to follow her husband and live wherever he thought fit to reside. He was obliged “to receive her and to supply her with all the necessities of life according to his means.”

Today the spouses are still bound to live together but they choose the family residence together and they are both obliged to contribute toward the expenses of the marriage in proportion to their respective means. He is no longer the knight, she is no longer the chattel.

Spouses today may have equal power but they also have equal obligations in law. He may have lost some of his power, but her obligations have increased.

The power of the husband has decreased in other ways as well. Until the 1950s, a married woman was considered to be incapable.

She required her husband’s authorization to appear in judicial proceedings and she could not enter into a contract unless her husband became a party to the deed or gave his consent in writing. She could not go into business without his consent.

This held true even when the husband was still a minor—under age 21—and she had already attained the age of majority. Anything done by herself without such authorization could be invalidated by anyone who chose to do so.

Once the parties separated, the wife regained much of her power. However, when an immoveable property was involved, she still required the authorization of a judge.

Perhaps the most demeaning laws that serve to illustrate the imbalance of power between the spouses were those pertaining to separation.

There was no divorce until the mid-1950s and spouses who no longer wished to live together would apply for a separation from bed and board. The husband could do so on the ground of his wife’s adultery; the wife could only do so if he kept his “concubine” in their “common habitation.”

Over time, both parties could use adultery—as well as “outrage, ill usage, or grievous insult”—as grounds for separation.

The wife had to obtain the authorization of a judge to undertake the proceedings in separation and to leave the family residence. If she failed to do so, her right to financial support could be removed.

Today a separation will be granted in cases where the will of the spouses to live together is gravely undermined. Either spouse can institute the proceedings and no authorization is required.

Men have lost much of the power they had previously in marriage. Spouses today have equal power under the law and the burden and responsibility for the support and functioning of the family unit is shared.

Perhaps Mother’s Day and Father’s Day should be replaced with Parent’s Day!

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