Item from the Smart
Marriages Archive, reproduced in the Divorce Statistics
Collection
November 11, 1998
Thursday, November 5, 1998
Marriage vow "in sickness and in health" on trial
In sickness and health?
By JANICE TIBBETTS -- The Canadian Press
OTTAWA (CP) -- When Frank and Sharon Bracklow tied the knot they never
suspected their
vow to support each other "in sickness and in health" would end
up in the Supreme Court of
Canada.
The legal battle, which is being heard today, is widely viewed by
lawyers and academics as a
ground-breaking test of the meaning of shorter marriages of this generation
and what a healthy
spouse owes a sick one when a union collapses.
"When you say 'I do,' does it really mean that, legally, forever?"
asked lawyer Carol Hickman,
who is defending Frank Bracklow in his fight against a challenge from his
disabled ex-wife for
long-term monthly support.
The court is being asked to rule on whether a sick or disabled spouse
is entitled to indefinite
financial support based on need if the disability is not a result of the
collapse of the marriage.
Both sides come before the judges armed with plenty of conflicting
lower-court decisions.
"It will be nice to have some guidance from the Supreme Court
because different provinces are
doing different things," said Barbara Young, lawyer for Sharon Bracklow.
"I think there are a huge number of spouses who aren't being
adequately supported and they're
not able to support themselves because of disability."
The Bracklows, a B.C. couple, started living together in 1985 and
married in late 1989. They
had no children together, although her two children from a previous marriage
lived with the
couple. They separated three years later and divorced in 1995.
He's a mechanic and was the main breadwinner during the marriage.
She was a self-supporting
key-punch operator and accountant before mental and physical problems forced
her to abandon
her career for periods of unemployment and odd jobs such as delivering pizza.
At one point, she
had a migraine headache that lasted seven months.
Frank Bracklow has remarried and his wife has a job.
Sharon Bracklow, who suffers from a mood disorder, an obsessive-compulsive
disorder and
an immune system disorder, is unlikely to work again. She lives in subsidized
housing and
receives disability benefits of $787 a month since a court allowed her ex-husband
to stop sending
her monthly cheques of $400 three years ago.
The B.C. Court of Appeal upheld the decision to discontinue the cheques,
ruling that marriage
vows do not include an implied agreement to support each other indefinitely
in times of financial
need.
Sharon Bracklow's lawyers argue that she cannot survive financially
on her own so the burden
should fall on family members rather than the welfare system.
"One is simply not allowed to abandon a spouse to destitution
at the end of a marriage if one has
financial resources which might assist in relieving the other's financial
circumstances," her
lawyers say in a written submission to the court.
Just as spouses know they are potentially giving up half of their
property when they marry,
they should also expect they are potentially assuming financial responsibility
for their spouses in
the event of economic hardship, including job loss, her lawyers argue.
Frank Bracklow's lawyers counter that he has already paid his fair
share and a ruling in his
ex-wife's favour would reduce marriage to "the purchase of a lifetime
policy of disability
insurance."
Shorter marriages of recent decades, in which the vow "until
death do us part" doesn't
necessarily apply, should not carry the same legal obligations upon termination
as long-term
unions of previous generations, says his court submission.
His lawyers, by way of analogy, use the hypothetical example of two
20-year-olds who
separate after a six-month marriage and one is disabled in a car accident
before the divorce is
final. Can the disabled spouse then claim support for life?
Frank Bracklow's lawyers also note the potential unfairness of such
a system.
"It would be arbitrary and unfair that one spouse, injured, say,
in an accident a few days before
the final breakdown of the marriage should receive lifetime support, but
another spouse injured
shortly after that date should be left to his or her own devices, perhaps
to suffer a lifetime of
penury," says his submission.
The courts have long established support standards for long-term,
traditional marriages, but this
case could potentially set a benchmark for support obligations arising from
shorter marriages
when one of the partners is disabled or unable to work.
"I think this would affect a lot of marriages. I think people
will start to second guess the
institution of marriage or even cohabitation if you have to pay support
forever," said Hickman.
| Smart
Marriages Archive | New Divorce
Statistics and Studies Blog | Older Divorce
Statistics Collection Archive |