If it’s too good to be true…

A proposed Egyptian law that would allow a man to have “farewell intercourse” with his late wife for up to six hours after her death is the perfect symbol of how that country has deteriorated since the ouster of Hosni Mubarak.  It’s also, according to the Christian Science Monitor, complete nonsense:

It was soon mentioned in an English language version of Al-Arabiya and immediately started zipping around social-networking sites. By this afternoon it had set news sites and the rest of the Internet on fire. It has every thing: The yuck factor, “those creepy Muslims” factor, the lulz factor for those with a sick sense of humor. The non-fact-checked Daily Mail picked it up and reported it as fact. Then Andrew Sullivan, who has a highly influential blog but is frequently lax about fact-checking, gave it a boost with an uncritical take. TheHuffington Postwent there, too.

There’s of course one problem: The chances of any such piece of legislation being considered by the Egyptian parliament for a vote is zero. And the chance of it ever passing is less than that. In fact, color me highly skeptical that anyone is even trying to advance a piece of legislation like this through Egypt’s parliament. I’m willing to be proven wrong. It’s possible that there’s one or two lawmakers completely out of step with the rest of parliament. Maybe.

But extreme, not to mention inflammatory claims, need at minimum some evidence (and I’ve read my share of utter nonsense in Al Ahram over the years). The evidence right now? Zero.

There was a Moroccan cleric a few years back who apparently did issue a religious ruling saying that husbands remained married to their wives in the first six hours after death and, so, well, you know. But that guy is far, far out on the nutty fringe. How fringe? He also ruled that pregnant women can drink alcohol. Remember, alcohol is considered haram, forbidden, by the vast majority of the world’s Muslim scholars. Putting an unborn child at risk to get drunk? No, that’s just not what they do. Whatever the mainstream’s unpalatable beliefs (there are plenty from my perspective) this isn’t one of them.

It’s important to remember that the structure of the Muslim clergy is, by and large, like that of a number of Protestant Christian sects. Anyone can put out a shingle and declare themselves a preacher. The ones to pay attention to are the ones with large followings, or attachment to major institutions of Islamic learning. The preacher in Morocco is like the preacher in Florida who spent so much time and energy publicizing the burning of Qurans.

Related: 5 Clearly Fake News Stories That Fooled the Media.

Good news, unmarried women of Nova Scotia!

You’ll soon be able to legally own land and enter into a contract.  Progress!

Nearing the turn of the 20th century, travelling by horse was still the way to go, the tallest building in Toronto was just seven storeys high and in Nova Scotia, it wasn’t OK for a married woman to own property in her name alone.

Or sign a contract.

Not OK at all, until the prov­ince enacted legislation to let it happen, a little more than a cen­tury ago.

“At that time, the practice was that a married woman couldn’t own property individually. An unmarried woman could, but a married woman couldn’t,” said Justice Department spokes­man Dan Harrison.

“Common law has advanced past that. We don’t need to have that anymore.”

As a result, the province says it is getting ready to eliminate six pieces of outdated legislation whose time has come — and gone.

Via @natnewswatch.

Divorce in 2011

Some new numbers:

The number of divorces initiated in Canada last year fell for the second year running, according to Statistics Canada.

Around 54,000 divorces were filed in 2010-11 in seven reporting provinces and territories (Nova Scotia, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut, representing 66 per cent of Canada’s population), two-per-cent fewer than the previous year, when about 55,000 divorce files were opened. In 2008/2009 there were more than 56,000 initiations. This year’s number marks an estimated eight per cent fall in new cases since 2006/2007.

The steady decline mirrors a fall in the number of couples tying the knot over the last two decades. Whereas in 1989, about 190,000 marriages were recorded, by 2008, the last year data are available, that number had fallen to just 150,000. According to StatsCan, it expects about 60,000 of those couples to divorce before they reach their 30th anniversaries in 2038.

And when they do make the decision to dissolve their unions, there are ways to speed up the process, according to the report. The median length of uncontested divorces was just 120 days, compared with 490 days for contested ones. Couples in B.C. were most likely to have contested divorces in 2010-11, accounting for 23 per cent of active files. Nunavut had the smallest proportion of contested divorces, at 10 per cent of active files last year.

Still, an extremely small number of cases end up requiring a trial. The report notes that just one per cent of open cases had a trial during the last year, and only two per cent had ever reached trial at any stage.

Divorcees with benefits

A New Brunswick couple wanted to divorce and insisted they had separated – even though they kept meeting for regular hookups, if you know what I mean:

If a married couple separates and still wants to have break-up sex, is that anyone’s business but theirs?

Well, according to some judges, it might be if they are trying to get a divorce.

Take the recent case of K.L.S. and D.R.S, a New Brunswick couple who married in 2004 and separated in 2010. Their case went all the way to the provincial appeal court, which rendered its verdict last month.

In this case, the husband moved out of the home and set up a place for himself across town. But at some point after their separation, the wife engaged him in sexual relations.

They agreed to new rules and boundaries about how it would all work and the new arrangement lasted for several months.

However, when it came time to formalize their divorce, which they both wanted to happen, the judge refused the application.

The New Brunswick Court of Appeal, in a 2-1 decision, ultimately granted the divorce.  Associate Justice Bradley Green examined the factors to be considered in determining whether a couple is truly living “separate and apart,” and determined that the trial judge placed too much emphasis on the fact that the parties were still having sex:

[23]                                   The courts long ago accepted the possibility that an estranged couple may at law be living separate and apart, even though they continue to reside under the same roof.  That said, surely we must also be open to the possibility that an estranged couple who no longer share a residence may at law be living separate and apart even though, for whatever reason, they continue to engage in consensual sexual activity with one another.

[24]                                   Had the inquiry at trial looked at all or most of the factors set out above, the following picture would have emerged:

•         The respondent maintains a separate residence, which he has arranged in such a way that the parties’ child has a second home there.

•         The parties do not communicate well, argue frequently, and what communication does take place is sometimes hostile.  There are allegations of abuse between the parties, and both testified their relationship included name-calling.

•         As discussed, the parties did engage in sexual relations with one another.

•         The only meal shared together was on the child’s birthday.

•         The parties do not attend or engage in social or recreational activities together. In fact, on those occasions when the parties would both be in attendance at their child’s activities, or happen to see one another in the community, the encounters could be problematic.

•         The parties do not travel or vacation together, and with the exception of a two-hour period at Easter, do not spend holiday time together as a family.

•         The parties present themselves to others as being separated and not on good terms.

[25]                                   Only one of these factors suggests that perhaps the parties were not living separate and apart, that being an ongoing sexual relationship.  Although the case law from trial courts across the country is not uniform, this fact alone should not, and in my opinion does not in this case, constitute an interruption of separation.

[…]

[29]                                   With respect, when the trial judge chose to focus on a single issue in determining whether the parties were living separate and apart for the requisite period, and did not address any factors other than sexual activity in her decision, she fell into error and opened the door for appellate intervention.  In my opinion, it was an error of law to give undue weight to one factor, and no weight whatsoever to the various other factors.

[30]                                   On the issue of reconciliation, I will comment briefly. Both parties testified that reconciliation was not their intention when they met to engage in intimate contact.  It is ironic that had they characterized these sexual encounters as attempts to reconcile (and on the assumption that the 90-day time limitation set out in s. 8(3)(b)(ii) of the Divorce Act was respected), apparently the question of whether they were living separate and apart would have been answered much more simply.

V.        Conclusion

[31]                                   On balance, the evidence in this case is strongly weighted in favour of a finding that in fact, and at law, the parties have been living separate and apart since February 10, 2010.  For that reason, the majority of the Court determined that the appeal should be allowed, the Petition for Divorce granted, and the matter remitted to the trial judge, who has already heard a considerable volume of evidence, to deal with the remaining issues between the parties.

Calgary radio host Rob Breakenridge and family lawyer Lonny Balbi discussed the case on Breakenridge’s show last night.  The resulting podcast is well worth a listen.

The rise of “gray divorce”

According to the Wall Street Journal, the divorce rate in the United States is declining overall – but increasing among older couples, as the baby boomers start seeing their children leave the nest:

For the new generation of empty-nesters, divorce is increasingly common. Among people ages 50 and older, the divorce rate has doubled over the past two decades, according to new research by sociologists Susan Brown and I-Fen Lin of Bowling Green State University, whose paper, “The Gray Divorce Revolution,” Prof. Brown will present at Ohio State University this April. The paper draws on data from the 1990 U.S. Vital Statistics Report and the 2009 American Community Survey, administered by the U.S. Census Bureau, which asked all respondents if they’d divorced in the past 12 months.

Though overall national divorce rates have declined since spiking in the 1980s, “gray divorce” has risen to its highest level on record, according to Prof. Brown. In 1990, only one in 10 people who got divorced was 50 or older; by 2009, the number was roughly one in four. More than 600,000 people ages 50 and older got divorced in 2009.

What’s more, a 2004 national survey conducted by AARP found that women are the ones initiating most of these breakups. Among divorces by people ages 40-69, women reported seeking the split 66% of the time. And cheating doesn’t appear to be the driving force in gray divorce. The same AARP survey found that 27% of divorcés cited infidelity as one of their top three reasons for seeking a divorce—which is not out of line with estimates of infidelity as a factor in divorce in the general population.

[…]

The trend defies any simple explanation, but it springs at least in part from boomers’ status as the first generation to enter into marriage with goals largely focused on self-fulfillment. As they look around their empty nests and toward decades more of healthy life, they are increasingly deciding that they’ve done their parental duty and now want out. These decisions are changing not just the portrait of aging people in the U.S., as boomers swell the ranks of the elderly, but also the meaning of the traditional vow to stay together until “death do us part.”

“Some of those marriages that in previous generations would have ended in death now end in divorce,” says Betsey Stevenson, assistant professor of business and public policy at the Wharton School of the University of Pennsylvania, who studies marriage and divorce. In the past, many people simply didn’t live long enough to reach the 40-year itch. “You can’t divorce if you’re dead,” says Ms. Stevenson.

But that’s not the whole story, given that the bulk of the increase in late-in-life divorce has come among people ages 50-64. As a generation, boomers have changed American notions of marriage—and in the process, they have sown the seeds of their own discontent.

Most sociologists argue that boomers entered marriage with expectations very different from those of previous generations. “In the 1970s, there was, for the first time, a focus on marriage needing to make individuals happy, rather than on how well each individual fulfilled their marital roles,” says Prof. Brown, author of the gray marriage paper.

I haven’t seen comparable statistics for Canada, but in my own practice, I’m struck by how many middle-aged and older people come to me seeking help with the breakdown of their marriages.

The man who adopted his girlfriend

Florida multimillionaire John Goodman (no, not that John Goodman) faced the prospect of bankruptcy when he was sued by the parents of a young man he killed in a drunk-driving accident.  He did have a massive trust fund set up for his children, but there was no way he could get access to that money.

Until now…

Enter the shrewd estate planning attorney who recommended that the 48-year-old Goodman adopt his 42-year-old girlfriend, Heather Laruso Hutchins, thus making her a beneficiary of the trust that Wilson’s parents cannot mention or touch. (In this arrangement, Hutchins is the beneficiary to roughly $70 million, which she would presumably share with Goodman, her doting dad-slash-boyfriend.) Elegant. Brilliant. And actually not that uncommon, it turns out.

Believe it or not, there is a growing trend in this country of adopting one’s adult lover or spouse for various reasons: to better guarantee the adoptee’s right to inherit directly from the adoptor; to keep other relatives from having any standing to contest an estate plan; or, as in Goodman’s case, to add a spouse or lover to a class of trust beneficiaries, allowing the “child” to inherit from the “parent.” Courts around the country are struggling to figure out whether these adoptions should be upheld or not.

Clever.  Sleazy and sick, but undeniably clever.

Slate asks the obvious question: wouldn’t the relationship between Goodman and Hutchins be considered incest, now that she is legally his daughter?  It would in some states, but not Florida:

But before you go out and adopt your lover, there is one pretty serious repercussion you should consider: Are you committing incest? An incest conviction can result in serious jail time. And think about it: The adopter is having sexual relations with his or her legal child. Is that not incest?

For as long as anyone can remember, almost all cultures have outlawed at least some form of sexual relations and/or marriage between family members. Written prohibitions can be traced as far back as the Levitical Codes. Incest is a statutory crime that has been around in America since colonial times.

My research indicates that today at least 25 states and territories, representing over 140.8 million people (approximately 46 percent of the total population) in the United States, are subject to laws that include the adopted parent/adult child relationship within the definition of incest. That means a good many adult adoptions solve one legal problem but create an arguably worse one. Fortunately for both Goodman and his daughter/girlfriend, Florida is not one of these states. Otherwise, they might find themselves facing criminal prosecution, as have adopters and adoptees elsewhere.

Insert your own Woody Allen reference here.

(via The Volokh Conspiracy)

Where the nanny state leads

When you keep infringing on people’s freedom “for the children,” a little at a time, eventually you get something like this:

Anurup and Sagarika Bhattacharya – an Indian couple from Kolkata are living a nightmare in Norway. Their children – a three-year-old son and one-year-old daughter – were taken away from them by Norway’s child protective services and placed in foster care eight months ago.

The drastic measure was taken because, according to the child protective services, the couple were not bringing the children up properly. What did they do wrong? They fed the children with their hands and the infants slept in the same bed as the parents.

“My son was sleeping with my husband. They said he should sleep separately from your son,” said Mrs Bhattacharya.

“Feeding a child with the hand is normal in Indian tradition and when the mother is feeding with a spoon there could be phases when she was overfeeding the child. They said it was force feeding. These are basically cultural differences,” said Mr Bhattacharya.

Recently, the Indian Embassy in Oslo stepped in and an officer even met the children, though the parents were not allowed to.

Reason‘s Shikha Dalmia says the parents have not been allowed to even see the children for the past eight months.  For this.  But remember, the government always knows best.

Eric, Lola, and division of property

This week, the Supreme Court of Canada will revisit the issue of whether common-law spouses are presumptively entitled to an equal division of family property:

They’re known as “de facto spouses.” Partners in a paperless marriage. Or, in this case, plain old Eric and Lola.

But there’s almost nothing ordinary about the tale of a 51-year-old Quebec billionaire businessman and a former Brazilian model, whose messy legal battle could change life for millions of Canadian couples.

Their case, which reaches the Supreme Court of Canada [this] Thursday, is expected to decide whether common-law spouses have the same rights as married couples to support and sharing of property after a break-up.

While the case is likely to have its greatest impact in Quebec, legal experts predict that if Lola succeeds in her landmark challenge, eight other provinces and territories that deny property rights to unmarried spouses, including Ontario [and Nova Scotia – DJP], will be forced to rethink their legislation.

As a starting point, common-law spouses should have the right to both alimony and an equal share in property, argue lawyers for the Women’s Legal Education and Action Fund (LEAF), an intervenor in the case.

[…]

Looming over the case is a 2002 decision by the Supreme Court involving Susan Walsh, a Nova Scotia woman who sought a share of her late common-law husband’s assets. In that case, the court’s 8-1 majority upheld a section of Nova Scotia’s Matrimonial Property Act, which gives only married people a share in a partner’s property.

The court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.

LEAF argues it is time to revisit the Walsh decision, saying the court in 2002 did not have the benefit of social science research that shows when people move in together, they aren’t motivated by legal considerations.

In fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.

Via @John_Magyar.

Family finances shouldn’t be a secret

Mindelle Jacobs of the Edmonton Sun, on the importance of sharing financial information:

Marie got the shock of her life at a routine mortgage renewal meeting, when her husband told the bank manager he’d racked up $22,000 in credit card debt.

“I had no idea,” recalls Marie (not her real name). “I would never have guessed it was that much. My blood pressure went up.”

That one spouse would hide extravagant spending habits from another is no surprise to family lawyers. Arguments over money are probably the biggest stressors on relationships.

When a saver marries a spender or when there’s no reasonable compromise on money management, the consequences can be dire – insistent creditors, bankruptcy or divorce proceedings.

“In my experience, it’s probably more common than not that a spouse doesn’t know every financial detail (about the other spouse),” says Marla Miller, an Edmonton registered family mediator and collaborative family lawyer. “It’s very rare that both spouses . know absolutely everything.”

Grant Gold, head of the family law section of the Canadian Bar Association, agrees. “It happens more often than you would think – that people run separate financial lives.”

The Toronto lawyer says he recently settled a divorce case in which the biggest stumbling block was that the husband didn’t know that his wife had accumulated $60,000 in debts.

“It’s relatively common. It speaks to problems in the marriage. And it speaks to the need for couples to communicate in advance about things like that,” says Gold.

Via @MarlaGilsig.

Every Father’s Nightmare

Two B.C. fathers were awarded sole custody of their children in Canada – but the mothers abducted the kids and took them to Europe, and they’re getting away with it:

Two Canadian fathers whose children were allegedly abducted by their mothers and taken to European countries say authorities have done little to try to enforce court orders and bring them back.

“I’m holding my hands up going, ‘Can somebody please do something about this?'” said Calum Hughes, whose five-year-old daughter Livia was allegedly abducted by her mother from B.C. and taken to Italy in 2009.

The latest RCMP figures show there were 237 reports of parental abduction in Canada in 2009 and 41 per cent of the children were under the age of five.

More than half the cases were resolved or withdrawn within a day. RCMP spokesperson Julie Gagnon said she didn’t know how many of the remaining children were taken to other countries.

She said when there is a warrant, as in the Hughes case, the RCMP can ask Interpol to put a “red notice” in the system, so the alleged abductor could be arrested at any border crossing.

She said, depending on the country and the case, extradition can also be initiated.

However, Hughes said he heard nothing from the RCMP after a charge was laid against his ex-wife two years ago.

Both fathers made Hague applications. Italy refused to send Livia home, though, because the court believed his Italian ex-wife’s assertion that Hughes was an unfit father, allegations that were rejected by a Canadian court.

“That’s all needless details and garbage,” said Hughes. “I’ve spent over a hundred thousand dollars and how many hours in court. I’ve ended up with nothing in terms of a relationship with my daughter. ”

Mezo’s application is stalled in the Hungarian court system, which has sympathized with the Hungarian-born mother of his son.

“The Hungarian court said that ‘well there is no warrant out for her. She didn’t do anything wrong in Canada. So therefore we take it all with a grain of salt whatever the judge ordered in Canada,'” said Mezo.

If you have reason to believe the other parent is planning to flee the province with your child, get a lawyer to make an emergency application for an non-removal order.  Once they’re in another jurisdiction, the process instantly becomes more time-consuming, complicated, expensive and emotionally exhausting.