A Recent History of the Common Law on Domestic Relations
Once upon a time, in Europe following the collapse of the Roman Empire to be specific, marriage was an important private economic institution and largely functioned free of control by the church or state. Marriage, and the financial and familial obligations it entailed, was the basic socioeconomic unit of feudal Europe. Upon marriage, a man and a woman were considered to be a single legal unit under the control of the husband: all of the wife's property passed into her husband's control, wives lost the power to conduct business in their own names, a wife lost the right to retain the wages paid for her labour, and husbands became able sue on behalf of their wives ...and solely liable for suits brought against them. In return, she was entitled to be provided with the necessities of life, although the quality and sufficiency of those necessities lay at her husband's discretion.
As with other social institutions, I suspect that the relative importance of marriage can be gauged by the depth and richness of the common law principles which evolved to regulate it. The common law relating to marriage is indeed quite rich and deep, and depicts marriage on the one hand as a quasi-commercial enterprise governed by the law of contracts and on the other as bedrock upon which stood one's reputation and standing in the community.
One could sue, for example, for breach of promise to marry, jactitation of marriage, criminal conversation, harbouring a spouse, and a miscellany of other matrimonial torts. Breach of promise to marry was based on the law of contracts. Jactitation of marriage concerned the false boasting of married status, thereby decreasing the marketability of the person alleged to be married to the boaster. Criminal conversation and harbouring a spouse had to do with the luring of a spouse away from a marriage thus depriving the other spouse of the benefits of the marriage contract, his "conjugal right" to his wife's services and company.
Marriages were entered into by oral agreement and did not require religious solemnization. The role of the church largely lay in determining who might marry, the circumstances in which marriages might be dissolved and addressing other largely social questions.
The law on marriage was thus governed by two masters, the ecclesiastic law on entering and exiting a marriage and the civil common law on the rights and obligations flowing from marriage. This changed dramatically in the early sixteenth century, following the Protestant Reformation in Europe and the Henrician Reformation in England, when government took upon itself the right to manage marriage and divorce. Unfortunately, one major element of Catholic dogma which survived the reformations was idea that marriages were indissoluble, as a result of which getting a divorce in England required the passage of a private act of Parliament!
The Legislation on Marriage and Divorce
The first Parliamentary law on marriage was passed in 1753, in the form of Lord Hardwicke’s Act for the Better Preventing of Clandestine Marriages, to address the unfortunate habit the youth of England and Wales had developed of marrying in Scotland where a costly marriage licence was not required. Prior to this, oral marriage contracts, marriages per verba de praesenti, created a binding marriage; now, the parties had to marry in a church (with exceptions for Jews and Quakers), with the publication of banns and a state-issued marriage licence.
The first Commonwealth law on divorce was England's 1857 Divorce and Matrimonial Causes Act, which allowed people to be divorced by court order and stripped what little jurisdiction remained to the church, and revoked many of the older matrimonial torts:
"As soon as this Act shall come into operation, all Jurisdiction now exercisable by any Ecclesiastical Court in England in respect of Divorces à Mensâ et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so exercisable, except so far as relates to the granting of Marriage Licences, which may be granted as if this Act had not been passed."(If you were curious, and I know you are, a divorce à mensâ et thoro terminated the spouses' obligation to live together and the husband's obligation to provide the wife with the necessities of life without actually giving the parties a divorce; this is the origin of the much-misunderstood judicial separation. A divorce à vinculo matrimonii was required to actually terminate a marriage.)
The UK Divorce and Matrimonial Causes Act was absorbed by the Province of Canada (the pre-confederation political unit formed of Upper Canada and Lower Canada by the 1840 Act of Union) and by the Colonies of British Columbia and Vancouver as a result of the proclamation of Governor Sir James Douglas in 1858.
Marriage and Divorce at the Dawn of the 20th Century
Given the complexity of the common law on marriage and divorce, it's not terribly surprising that the legislation on these subjects would assume a similar quality, and by 1900 we had the federal and provincial Divorce and Matrimonial Causes Acts, the federal Offences in Relation to Marriage Act and the provincial Marriage Act. Marriage remained a tremendously important institution, one with profound social and economic consequences, and these laws sought to protect it.
Under the provincial Divorce Act of 1897, a husband could apply for a divorce on the basis of his wife's adultery. A wife, on the other hand, could apply for a divorce on the basis of her husband's incestuous adultery, rape, adultery coupled with cruelty, or adultery coupled with his abandonment of her for at least two years without reasonable excuse.
The provincial Marriage Act of 1867 allowed religious officials and government-appointed registrars to marry "any two persons" not under a legal disability to contract the marriage, providing that persons under the age of 21 had the consent of their father to the marriage. The act made it a crime to make a false statement to procure a marriage or to perform a marriage between persons not qualified to marry.
The federal Offences in Relation to Marriage Act of 1886 made it a crime to:
- pretend to solemnize a marriage;
- procure someone to solemnize a marriage who was not authorized to do so;
- procure a feigned marriage; or,
- marry someone while being married to someone else, in other words, to enter into a bigamous marriage.
Bigamy, Polygamy and the Criminal Code
Sections 290 to 293 of the federal Criminal Code are titled "Offences Against Conjugal Rights." Section 290 says that every married person who goes through "a form of marriage" with another person and every person who goes through "a form of marriage" with a married person has committed bigamy, punishable under section 291 with jail for up to five years. Section 293 says that people who practice polygamy or "any kind of conjugal union with more than one person at the same time" has committed an offence.
It's a bit difficult to tell these sections apart. Bigamy and polygamy are rooted in the Greek word gamos, meaning marriage. The prefix "bi" means two, and the prefix "poly" means many; accordingly, the dictionary definition of bigamy is being married to two people, and the definition of polygamy is being married to many people. (Polyandry means having many husbands and polygyny means having many wives.) Bigamy is the traditional criminal offence, however, having been made a felony punishable by death by the first Parliament of James I in 1604, and continued in the 1861 Offences Against the Person Act with less severe consequences.
The historical intention seems to have been preserved in the Criminal Code. Section 290 clearly focuses on marriage as the problem created by bigamy; the offence lies in marrying someone knowing him or her to be married, or a married person marrying again while aware that his or her previous marriage subsists. Section 290(2) excuses the bigamous conduct if the married party genuinely believes his or her spouse to be dead.
Section 293 on the other hand, seems aimed at criminalizing polyamorous conduct; the offence of polygamy lies in the parties' agreement to live together in a marriage-like relationship, although, to be clear, a form of marriage ceremony isn't strictly required. This seems to be the core of the problem the Crown is targeting in the present hearing, and the resulting question of whether the criminalization of this sort of conduct is consistent with the Charter guarantee of freedom of religion.
In the legal climate prevailing in 1604 and 1861, the criminalization of bigamy made sense. Bigamous marriages could have disastrous social and economic consequences for the innocent party, and the criminal law fit neatly with the common law principles that had accumulated in respect of the rights and obligations marriage entailed. The criminalization of polygamy, assuming that issues about marriage aren't really the problem the law was intended to address, is about the legislation of morality and the enforcement of conformity. In the nineteenth century, I'm sure this made sense; today I'm not so sure.