Canada's First Gay Divorce

Lesbian couple seeking country's first same-sex divorce
TORONTO - A lesbian couple in Ontario may face problems getting what is believed to be Canada's first same-sex divorce because the law limits divorce to male-female couples. The Divorce Act, which is federal legislation, defines spouses as "either of a man or a woman who are married to each other."Toronto lawyer Martha McCarthy and her client, M.M. have asked the Ontario Superior Court of Justice to issue an order that the federal definition of spouse under the Divorce Act is unconstitutional. She said the federal government is due to respond next week."It's unconstitutional to give straight people the freedom to divorce, and not gays and lesbians," said McCarthy.She said she has written to the federal government asking it not to fight their court challenge.


Lesbians launch Canada's first same-sex divorce
TORONTO (Reuters) "Under the Divorce Act, a court can only dissolve a marriage between a man and a woman," Hannaford said.The couple are asking the Ontario Superior Court of Justice to grant them a divorce and deem the Divorce Act's definition of spouse -- "of a man or woman who are married to each other" -- unconstitutional. The petition asks the court to order the phrase "to each other" be dropped.The court has ordered the names of the two women be kept secret because one, identified only as M.M., has "serious concerns about embarrassment and emotional distress" if her name were known."There is a certain stigma associated with being ... the first gay or lesbian couple to divorce," according to court documents filed by M.M.'s lawyer.

Equal Marriage also has a Same Sex Divorce petition online (pdf)

Canada gets 'first' gay divorce
The divorce petition, filed last month, is due to be heard in September.Lawyers for the federal government had asked to the court to defer the case until the Canadian Supreme Court rules of the legality of gay marriages nationwide.

According to US divorce statistics, 50 percent of first marriages and 60 percent of re-marriages end in divorce.

National Center for Health Statistics projects about half of first marriages in the United States will end in divorce.Traditional wedding vows, of course, include the promise to love "till death do us part." But some modern day couples are saying "not so fast."The New York Times reports a trend among the betrothed to hedge their bets. They want to leave out the till-death part and consider options to love and honor "as long as our love shall last" or whenever.

About.com has an interesting piece on the history of marriage, where they describe how marriage evolved for the purpose of handling property rights...Most unions were financial relationships in early times, there was no romance, no dating or courtship, and often the couple had no choice. In the earliest books of the Bible woman were purchased (since this was a pastoral society we find women being traded for sheep).

Joseph Campbell, in the Power of Myth, mentions that the Twelfth century troubadours were the first ones who thought of courtly love in the same way we do now. The whole notion of romance apparently didn't exist until medieval times, and the troubadours.

It was Pope Nicolaus who first legistlated the notion that couples should have a choice in getting marriage, and that the earlier practice of forced marriage was grounds for nullification.

The statement of Pope Nicholas I in which he declared in 866, "If the consent be lacking in a marriage, all other celebrations, even should the union be consummated, are rendered void", shows the importance of a couple's consent to marriage. It has remained an important part of church teaching through the years.

The invention of the marriage ceremony dates back to the 1500s, and before this time 'marriage' seemed to resemble what people today would refer to as 'shacking up' (in the Bible no priest or ceremony is described, since 'marriage' as we understand it did not exist, and a man would conduct a financial transaction to purchase a wife by negotiating the price with her family...this is different from what took place in India were the parents of a girl 'purchased' a husband for her - the notion of the dowry being paid, once again a financial transaction, with the family selling their son only to a satisfactory bidder...this was one way of making an economic transaction that could improve a families position and status if they could afford to 'purchase' the son of another wealthy family.

The Bible also describes the legal status of a mistress (referred to in the Bible as a concubine) and this status is also described in Roman law, and in both cases the Bibl, and Roman law agree that a concubine does not have the legal status of mother or wife and as consequence any children she bears do not have legal status as heirs. Speaking of concubines the Roman Law Book XXVI. Title VII. Concerning Concubines.1. Ulpianus, On the Lex Julia et Papia, Book II. proclaims legislation that states that "It is clear that anyone can keep a concubine of any age unless she is less than twelve years old."

The Counterpunch site has an interesting article on the wide variety of sexual behavior in human societies over the course of history (monogamy, or 'family values', is not the norm throughout history) and the article also points out that some sort of legally or socially recognized gay relationship existed in some form or another extending back throughout history, so in that sense, the current 'gay marriage,' which mimics the current social norm of the surrounding culture, is not really something new, but rather a variation of an ancient theme.

"The study of world history will really tell you that pretty much any kind of sexual behavior can become institutionalized somewhere, sometime. You know that polygamy remains normal and legal in many nations, as it was among your Mormon forebears in Utah. In Tibet, polyandry has a long history, and modern Chinese law seems powerless to prevent marriages between one women and two or three men."

It also interesting to note that most societies throughout history had some form of polygamy in practice (although for economic reasons, although polygamy was allowed, it was not always possible for anyone but the wealthier members of society to practice it, and in Islam polygamy was only legal for the wealthy). It is probably no coincidence that the one society that outlawed polygamy was the Greco-Roman world at the time that Christianity evolved and imposed monogamy as the social norm, and this cultural influence explains the Christian attitude towards monogamy even though the Jewish part of the Bible is completely polygamous (and Christians claimed the Jewish books as scripture). Most women in the ancient near Eastern world were part of polygamous relationships since due to the constant warfare and feuding (ever read your Bible) there was a high mortality rate among men, and this fact is what made polygamy possible, although it seems likely that some men were probably excluded even so...

The female purchasing arrangement found in the Bible has been described as being a,

Bride price or bride service. Men are required to buy wives by presenting the bride's family with suitable and costly gifts, or carrying out long periods of work for them. Because bride prices are often collected by the groom's family, he will never be able to marry unless he has been obedient to their will, usually for a long period."

As the high divorce rate proves, polygyny remains deeply entrenched in human culture, and even in a society such as ours where there is this superficial veneer of monogamy, the ancient polygynous system still prevails, few people actually having a monogamous history, and the practice is also evident in serial divorce and remarriage...

"Although polygynous marriages are not recognised in most modern societies, polygynous behaviour remains common. It survives through the use of mistresses and concubines, who are openly or secretly supported by wealthy males. The other form of modern polygyny is Serial Polygyny, sustained by divorces and remarriages that allow partners to experience multiple, legitimate relationships."

"Polygyny is probably the commonest mating system among vertebrates, and is especially common among mammals... humans show much more flexibility in mating systems than most, perhaps all, other animals, and almost every possible kind of mating system exists in some society. However, the prevalence of polygyny in human societies combined with the biological evidence suggests that it may be the primitive form."

The spread of monogamy as it is understood today does not have deep roots in history but is linked to the period of global European imperliaism, which is itself linked to Christianity, which is linked to the Greco-Roman world which at the time Christianity emerged had forbidden polygamy.

Alternet has an article discussing the sociological view of monogamy, and the link between the notion of 'private property' and the role of Christianity in altering age old cultural sexual patterns around the world.

Sexual customs began to disappear after the arrival of traders, who brought in material goods such as machetes, axes, pots and pans, introducing the idea of exclusive ownership. The missionaries came next. The evangelists, who arrived in the early 1970s, translated the Bible into Canelan and did their part to discourage the tribe's sexual intimacy.
The pattern is repeating itself with the Barí as missionaries import rural Catholic values. Beckerman says, "I suppose it doesn't mean there's any less fooling around, it's just that the fathers don't take responsibility for it and the mothers don't admit it."
Modern relationships are not all that different. High infidelity, remarriage and divorce rates may have less to do with modernity than with our collective sexual past. "It makes the variation we're seeing in modern society so much more understandable," Hawkes says.
If the anthropologists are right, monogamy may well be counter-evolutionary or an adaptation to modern l ife. Or perhaps the nuclear family has always been more of an ideal than a reality.