There is no question that the statutory provisions contained in the Married Women’s Property Act were helpful to the women’s liberation cause.
The changes started prior to Confederation.
When a woman married a man, she lost her “legal personality”. It merged with that of the husband who assumed legal ownership of her real property and chattel property with the limited exception of some personal items.
In exchange for this “bargain”, the husband was obligated to provide his wife with support. As you can appreciate, that didn’t always happen.
There were three periods of dramatic changes across Canada:
1) 1850’s to 1860’s – recognition and support to families in crisis,
2) 1851 to 1884 – all married women received the rights initially granted to deserted and abandoned wives. Laws provided that a wife’s property belonged to her, and was not subject to her husband’s debts, but it did not grant women “dispositive control over their property.” It merely protected the property from the husband and his creditors. The intention was to preserve some assets for destitute families,
3) 1870 to 1880 – Married Women’s Property Act of 1872 (Ontario) permitted wives to control their own “wages and personal earnings” and any profits from a business they owned. This legislation was designed to regularize creditors’ rights, by subjecting married women to the same property laws that governed everyone else. The later Act passed in 1984 clarified that the husband was no longer trustee of his wife’s property.
While the public seemed to appreciate the legal reforms, many judges loved the common law principles that had been established in the 13th century. So, while they were sympathetic to the circumstances that some women might find themselves in, they strictly construed the legislation often to the point where there was little left to the statute.
The actual fundamental problem in society was that women had no property. So, while there may have been an Act entitling them to dispose of property, they could rarely acquire it in the first place. This type of legislation was helpful in name only. The husband still owned all the property in the first place. The wife would not qualify for a mortgage on her own, and if her father were rich, he likely placed her property with trustees anyway.
It was not really until the reforms in the 1960’s dealing with family matters, divorce, custody, support and the division of property that these issues were addressed once again.
In the 1978 Family Law Reform Act, the concept of “marital unity” was abolished for once and for all. Further amendments in the 1986, Family Law Act (which is the current legislation) recognized the value of work undertaken at home by a wife as a valuable asset of the family worthy of a division of family assets.
Historically, that was a long time in the works, almost a century:
1872 – Married Women’s Property Act (the right to convey)
1968 – Divorce Act (Canada) permitting no fault divorce
1978 – Family Law Reform Act, abolishing “marital unity”
1986 – Family Law Act, permitting equal division of assets.
So, since that time, married women are just “regular people like everybody else”.
Nevertheless, there are still some positive steps that could be taken to improve the rights of both men and women under the Family Law Act.
Brian Madigan LL.B., Broker