If law is an 'autonomous' legal system, then we subscribe to the theory that law is "independent of society's other mechanisms of social control", and that it is "self-legitimating".¹

But it would, perhaps, be too simplistic to think that outside factors -- social, political, religious, ethical, as well as custom and tradition -- do not influence the legal system of a locality. They do. For example, religious customs and traditions of immigrant communities (i.e., new citizens) begin to be recognised (judicially) by the hosts (immigrant-receiving countries) in due course of time.

In this regard the case of Sikhs (more correctly the Khalsa Sikhs²) offers us an excellent example. Gone are the days when the simple action of wearing a turban by a bus driver would bring the public transport of a whole city to a standstill.³ Slowly and steadily the dress code and religious uniform of a minority community has been accepted by the public and state institutions.⁴

Legal systems may be culture bound but they do change in due course of time as new social forces take hold, new life-styles develop, or religious and ethnic composition of a particular locality changes with time. Contemporary liberal democracies can no longer ignore the religious customs and traditions, and personal or folk laws of the immigrant communities amongst them. There "are good independent reasons why cultural differences should, subject to certain limits, be accepted".⁵

Few people nowadays would argue publicly that 'new citizens' should conform to the native norms and integrate with the local populations; diversity is the new buzz word. In fact few immigrant minorities are making any 'conscious' efforts to 'do as the Romans do'. "They have become the Romans".⁶

This paper deals with a very specific situation, viz., the form or pattern of family as practised in diasporic South Asian communities, and the impact such a form of family pattern can have on family matters especially at marriage breakdown when family assets (or values thereof) are to be divided 'equally' as is the case in Canada. Such is not the case in some other jurisdictions, e.g., England and Wales which do not allocate property at marriage breakdown on a strict equal division.¹¹ In fact, there is no legal definition of family assets in England and Wales. Therefore, the dilemma faced by a divorcing couple in Canada is different from their counterparts in England and Wales.¹²

The issue that is being raised in this paper is:

In other words, how can the wider family (united, joint or extended South Asian family), in Western environment, be regarded as a legitimate 'target' for division of assets or equalization of family property at marriage breakdown?

The issues raised here have cultural overtones. Words such as family, marriage, woman's property, etc. can have different meanings in different cultural contexts. Though several authors¹³ have already written on the issue of ethnic minorities and law, I believe insignificant attention has been paid to the issues resulting from marriage, divorce, property division, etc. in diasporic South Asian communities, especially the Hindu community.¹⁴ Family law, in my opinion, will become increasingly important as the number of ethnic minorities and divorces in these communities increase with time, and English and Canadian lawyers will have to pay more attention to the religion, culture, customs and traditions of the minorities settled amidst their boundaries.¹⁵

Let us first look at the term 'family' and the concept of 'family' as currently available in official and academic circles since it is a family matter that we are discussing in this paper. We will then describe and discuss the 'peculiar' pattern of family life-style that is practised in some Asian communities, followed by a discussion of its impact on family law matters as they may relate to the situation in Canada, but more particularly in the province of Ontario.

The Universal Declaration of Human Rights proclaims that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State"¹⁶ but it fails to state what kind of family must be protected and from whom. The answer to such a question would be difficult to give when there is so much variety and diversity of family life-styles, including certain family life-styles¹⁷ that may be in conflict with the established laws and norms of a given society at a given time.

In a premier book on family published by a premier institute on family in Canada, the author stated:

Though Canada has been continually populated by a variety of ethnic groups from many parts of the world for a long time, the author lamented that there are "surprising few studies of ethnic groups which focus on families".¹⁹

Writing a little more than a decade later, in the first ever book of readings on Canadian family, K. Iswaran, the editor, recorded that though "a considerable body of empirical data relevant to such studies has been accumulating over the past decade ... significant sociological studies on families in Canada cannot at present be counted in two figures".²⁰

Though the meaning of the word 'family',²¹ "depends on field of law in which word is used, purpose intended to be accomplished by its use, and facts and circumstances of each case", the term 'family' "[m]ost commonly refers to group of persons consisting of parents and children; father, mother and their children; immediate kindred, constituting fundamental social unit in civilised society". In other words, family can be defined as a "collective body of persons who live in one house and under one head or management".²²

Thus "a group of persons related to each other by marriage or blood (or otherwise) living together under a single roof and comprising a household whose head is usually the father or husband" is family, "but the word is not one of inflexible meaning and its significance to a large extent depends upon the context and the purpose for which it is employed".²³

In the context in which this paper is set, the term family can also described as extended or joint family, in the sense most South Asian families are, where the husband, wife, and their children are joined by the in-laws, usually those of the wife, who living under the same roof, sharing one kitchen and partaking from the common cooked food, and participating in common worship, comprise family.

Whereas this form of family pattern, i.e., joint family, is quite prevalent in some ancient cultures, it is only recently that it has gained some recognition in Newly Developing Multicultural Countries. A Labour Force Survey conducted in England in 1981 "revealed that some 28% of Asian households contained three or more adults together with one or more children".²⁴ An earlier survey, conducted in the mid-70s, indicated that "as many as one-third of (immigrant) households were of the extended family type compared with two-third of the nuclear type".²⁵

The concept of joint family is nothing new to Asian immigrants; in fact a great proportion of families in Asia, particularly South Asia with which this writer is quite familiar with, live in united or joint families. The paradigm of united family is fully ingrained in the local laws and customs of India. The extended family is a common feature of many South Asian families in the diaspora, a mirror image of the family pattern existing in their home countries where, irrespective of their religious affiliations, a majority of families "live under extended or joint family system, usually spanning three generations".²⁶

Writing more than a century and a half ago, in his classic book on Hindu law, Sir Thomas Strange observed:

The family life-style of South Asians living in Britain and Canada is not much different from the pattern of family prevailing in India. According to a Canadian informant who works with South Asian families regularly -- (personal communication) -- as many as 80-90% of the Indian families, where parents of either spouse have come to join their married son or daughter in Canada, are joint or extended families .

The traditional concept of marriage in India is much different than it is commonly understood in the West -- i.e., a love-marriage between two people who are united together in a church or civil ceremony to form a nuclear family for the purpose of companionship and/or procreation . In other jurisdictions marriage may be a contract, or an economic partnership between two persons.

Indian marriage, on the other hand, is not an economic or equal partnership between two people but an association between two families. When a marriage of a young man or woman is contemplated in a South Asian household, it is not only the prospective bride and groom who are considered but also the nature, wealth, status, and caste of the families they come from. Such a union is commonly referred to in the western media as an 'arranged marriage' though by law two young people cannot be forced to marry against their wishes. Where such a marriage has taken place, i.e., either the bride or groom have been forced to marry someone whom they had not known or seen before the day of marriage, the Court has been asked to annul the marriage but without success.²⁸

After marriage, in most rural areas and some urban neighbourhoods, the bride not only joins her husband, but also the family of her husband, whose parents often live with the married couple. The family thus is not nuclear but joint; i.e., a family joint in worship and food. The earnings of the family members may be put in a joint account from which are paid the mortgage and general household costs.

If the woman is gainfully employed she will of course be contributing a larger share of her income to support her husband's family since it is her husband's family (parents or siblings) who are staying in her matrimonial home. As such she may be financially much disadvantaged at marriage breakdown, in a jurisdiction which allows for equalization of family property, because she has spent a larger portion of income on third parties .

This type of paradigm is in stark contrast to the western model of family which, until recently, has been described as the 'nuclear', 'heterosexual' or 'married' family where a man and woman formed the family unit (with their children, if any) after having been 'joined in holy matrimony' in a church ceremony, or having been declared husband and wife in a civil ceremony.²⁹

However, some men and women have cohabited, i.e., 'living in sin', without getting married, considered to be forming a family unit but lacking the protection and benefits of law as husband and wife in case of a break-up, until recently.

Other forms of families, e.g., same-sex couples, have continued to develop in western countries. Lesbian and homosexual couples have been granted judicial recognition as 'married couples' by Canadian courts as far as medical and social benefits, and division of property at marriage breakdown is concerned; though in some jurisdictions such 'marriages' are still a point of controversy.

That the Canadian family (or the concept thereof) is changing and has changed in the last quarter of a century is now an acknowledged fact. Books for children no longer accept the married man and woman (papa and mama) with their biological children as the only model of 'standard' family. Under pressure from various feminist and other SIGs, publishers of children books have issued books that describe alternative families made up of unmarried men and women cohabiting together, same-sex couples and single (married or unmarried) mothers raising their own or adopted children as family units. In fact school teachers when asked to teach a unit on 'Family' are advised by the curriculum writers to ensure that all types and forms of 'alternative' family styles are included in their lesson plans.

The concept of diversity of family life-styles has also been accepted by almost all family law reform commissions from Nova Scotia to British Columbia.³⁰ For example, a report from Nova Scotia states:

This, say the Commissioners, has been necessitated by "the fact that divorce is increasingly prevalent as are second and third family units; the social acceptance of cohabitation relationships as a family form; the increasing number of children born outside marriage; and the increasing recognition of same sex cohabiting couples both socially and legally".³²

The Ontario Law Reform Commission also admitted that "[t]he most profound change is the increasing diversity of family forms in which individuals choose to live".³³

However, the diversity that almost all law reform commissions are talking about is one-sided diversity; diversity as viewed by Eurocentric commissioners or report writers who have conveniently neglected a very special type of family form, i.e., joint or extended family, which is quite prevalent in some immigrant populations.

Since little consideration has been offered to such a form of family life-style in the above mentioned and other law commission reports and discussion papers, we present here a hypothetical case that may highlight a possible problem that I envisage for a working Asian Indian woman, living in a joint family situation, at marriage breakdown.

Let's say an Asian Indian girl, either born or educated in Canada, goes or is sent to India to get married due to family pressure or by tradition. She marries in India, and sponsors her Indian husband, who joins her in due time. The girl is employed, supports her husband during his adjustment phase in Canada, helps put him through college or additional qualifications, and finally he finds a job.

In the meanwhile the couple sponsors the husband's parents and their under-age children who gain entry into Canada under the government's family reunion policies (even when most of the husband's siblings are in India).

The extended family moves into a bigger and more sumptuous home, acquires prestigious belongings to show newly achieved status but the Indian husband gets fired, or leaves his job because it is below his qualifications; thus making the Canadian Asian girl to contribute a high proportion of her earnings to the total household expenses. In fact, she may have supported the whole enterprise herself, making herself much poorer in the process (i.e., had she not lived in a joint family situation) while her husband's and his parents wealth continues to grow from zero to thousands.

Most older folks who have come to join their children overseas do not work due to their advanced age or because of the nature of jobs available, some older Indian men (and a few Indian women), however, do find gainful employment.

While earning a living in their own right, most older folks continue to live with the married child (usually the son) but rarely contribute proportionally to the household expenses. Some old folks, however, may baby sit their grand-children in lieu of making a direct payment to their son or daughter-in-law for boarding and lodging.

In a situation like this the Canadian Asian woman has very little hard cash or savings to show in her own account, but the total family income has risen manifold. She is the sole provider of her extended family's household expenses, while moneys earned by her in-laws are theirs to keep.

It is also not very uncommon for some Indian men to open an NRI³⁴ account with an Indian bank where certain funds can be transferred either in his or his and a relative's name to earn substantial interest income in India which would be insulated from inclusion in matrimonial assets in case of a divorce since final statement for such funds cannot be easily traced.

Now let's say, after a few years, rifts develop between the Canadian Asian girl and her Indian husband who refuses to do, hanging on to his Indian mentality, any household chores (washing the dishes, doing the laundry or ironing) because they are below his dignity. Having come to know that Canadian law allows him to get one half of the family assets (to which may have contributed disproportional little) he files for a divorce.

In the meanwhile, the husband's parents, who have resided with their married son and his daughter, have accumulated tens of thousands of dollars in OAS³⁵ and other government benefits³⁶ while contributing a negligible amount to the household expenses. They may also encouraging their son's divorce action since he can still return to India and get married again ('foreign' Indian is still valued since he can sponsor his fiancee or wife to Canada).

Several issues that come to my mind. I will point them out as we go along, but first allow me to explain the Canadian situation re. family law.

Canada is a federation comprising ten provinces and two territories which have their own provincial and territorial governments. There is a division of powers between the provincial/territorial governments and the federal government.

This is so delineated in the British North America Act, 1867.³⁷ In family law matters, the federal government is responsible for divorce laws³⁸ whereas matters concerning division of matrimonial assets (or values thereof) at marriage breakdown are left to the provinces.³⁹ Though rules for divorce are uniform all over the country, rules for the division of spousal (family) property at marriage breakdown vary from province to province.

For example, unique to Nova Scotia⁴⁰, is the way family assets are calculated at marriage breakdown. Unlike Ontario and most other provinces, where only family assets acquired after marriage are to be included in the valuation of Net Family Property (NFP) of each spouse, Nova Scotia includes "all property owned on the day of marriage as sharable assets"⁴¹ to be divided equitably.⁴² However, certain assets such as business, gifts and inheritances, and some other property, e.g., personal property other than land, are excluded from sharable assets at marriage breakdown in the province of Nova Scotia.⁴³

In the province of Ontario, property is defined as "any interest, present or future, vested or contingent, in real or personal property",⁴⁴ i.e., any:

However, certain properties are excluded from a spouse's net family property, e.g.:

Hence, when a petition is filed for separation or divorce both spouses are required by law to file with the Court, under oath, a declaration of:

The purpose of obtaining these statements is to allow the Court to facilitate the equalization of net family properties so that "the spouse whose net family property is the lesser of the two net family properties is entitled to one-half of the difference between them".

This is all well and good in theory, but in practice it is not so easy obtain full and fair value of all marital property without some trouble and cost. If divorces were meant to be simpler and easier to obtain without (excessive) litigation it has not happened so. Though a great proportion of 'no fault' divorces -- as many as 95% of the cases -- are settled out of court through attorneys negotiating, private ordering or under the law, a few cases do end up in the Court.

A major asset of most couples is the family home. Its value is easily ascertained by obtaining a comparative market value from a professional appraiser at some cost. The value of other assets, such as company pension or private RRSP⁴⁶ is much more difficult and expensive since actuarial estimates may be required if the parties cannot reach an out-of-court settlement.

Though a fair market of household items like furniture and furnishings can be obtained from auctioneers and experienced professionals in the field but it can be time-consuming and expensive at a time when funds are limited and neither of the spouses want to spend any money on obtaining such estimates.

Technically a spouse is in his/her right to demand valuation of everything in the household, held by the parties and their children. However, it is generally agreed (in most amiable divorces) that personal effects, like clothing and things used by a spouse, are a spouse's personal property, and not to be taken into consideration while preparing NFP statement. But it is not always so. A difficult spouse can make simple matters difficult if he/she insists on including everything in the household, including salt and pepper shakers, soaps and toiletries, woman's apparel and jewellery, children's belongings and whatnot as matrimonial assets countable and divisible at marriage breakdown.

Of particular interest to a legal practitioner involved in a South Asian divorce is the woman's jewellery. A problem can occur at marriage breakdown if the male spouse insists on including and dividing his wife's jewellery -- wedding bands, betrothal or engagement ring(s), and other wedding gifts such as silverware, etc. -- as family property whose valuation must be included in the wife's NFP. How will a judge decide in this matter? What will a judge say if the woman says that her divorcing husband must return the value of all gifts and dowry that her parent's had given to the groom and his family at her marriage?

Anglo-American case law is silent on this issue. However, South Asian custom and tradition is not so silent. Hindu law is quite clear as to what forms a woman's property, technically called Stridhanam.⁴⁷ Personal property of a wife "consists of her ornaments, and wealth (which she may have received from her relations)". A text of the Puranas⁴⁸ (paraphrased here) says:

According to Hindu custom and tradition, woman's gold jewellery and ornaments are considered gifts to a woman, a part of her dowry and property, items given as gifts of affection (pritidatta). As such they shall remain her property, excluded from inclusion from her NFP. However, the law as it stands in Ontario and most other provinces is a bit vague and unsure on this issue. The author is of the opinion that the Matrimonial Property Act be amended to reflect the immigrant community customs and traditions to keep up with the times.

When a family is joint, united in mess and worship, living under a single roof, a variety of benefits (and of course tensions) accrue to all members of the joint family. However, when marriage between the principal partners breaks down, it is not only they but also other members of the family who suffer. For example, the grand-children will no longer have the care and company of grand-parents who will have to acquire separate accommodations or live with their son without his wife or vice versa.

Such a situation would of course not occur in India where the daughter-in-law would usually be the one who will be 'kicked out' of the ancestral home. But overseas, the situation is reversed; the older folks would usually be living in their son's (or daughter's) house and his/her spouse. In the hypothetical situation detailed earlier in this paper, we might wish to consider the situation of man's parents who have been living with their son and his wife; the later having supported them for most of her married life.

Since the husband's parents have been living the married couple, say for 10-20 years, during which time they have made little financial contribution to the family's household expenses, but have certainly cost one of the spouses (in this case, the wife) substantial expenses for boarding and lodging them for such a long period of time. Hence the wife has suffered significant depletion of her financial resources to support two extra adults who have in the meanwhile, during their stay with the married couple, cumulated significant savings through employment and government benefits.

The question being asked here is this: Since the older folks are members of the husband's family, are there any legal grounds or precedents to add their assets to the husband's NFP to equalize the net worth of the divorcing couple?

Unfortunately there is no reported case on this subject as far as I know, but a case is currently proceeding through Ontario courts which might be of some relevance here. In this case, a daughter-in-law is suing her parents-in-law for child support since they had previously shown filial interest in the grandchild, and the old folks had been a part of the (joint) family. The divorcing wife's husband in this case is unable to make any child support payments (presumably he is unemployed) but his parents are financially independent.

If the woman in this case prevails, then surely the wider family (members of the joint family, living with the married couple in the same household, and having been supported by the couple during earlier times) could be regarded as a legitimate target in calculating the assets of one or the other spouse.

But, the woman in this case may have another avenue open for her to consider, i.e., of constructive trust and undue enrichment. If it can be shown that the woman have served her in-laws in the hope that she had indeed treated them as her parents during her matrimonial life from whom she expected and received counsel in happy and difficult times, and that she had hoped that they would pass on their estate at their death to their son or grandchildren. It is also possible that the woman may be thinking that the moneys that they were saving by not paying any boarding or lodging expenses, was in fact being held in trust for her and her family.

Apart from this is the possibility of invoking the concept of undue enrichment which has been visited by the Canadian high court in more than one instance in cases of marital breakdown.

Conclusion

The effort made in this paper is far from satisfactory and the case has not been laid to rest conclusively. There are so many ifs and buts as far as the hypothetical case is concerned. However, I believe, I have to some satisfaction brought an issue to your attention that may be of some significance in family law cases as English law moves towards accepting the division of matrimonial property at marriage break-down, perhaps in the next century as is perhaps the indication given by certain news report on the matter of division of pension funds_ at divorce in England and Wales.

What I have tried to relate here that break-down of marriage of a South Asian woman living in a joint family does raise a number of issues that have hitherto not been discussed. Since the number of South Asians living in Britain and Canada is significant, even though the divorce rate in this community may not be as high as in the host community, divorce does still occur in this community. It is suggested that law-makers and others involved in policy making decisions re. amendments to matrimonial property may wish to consider the arguments made in this paper. viz. that the South Asian married working female in a joint family situation may have spent disproportional amount of money from her earnings to support her husband's family, and that at marriage break-down she should be appropriately compensated for her efforts. If an argument for unjust enrichment can be made in such a case is yet to be seen, but such an argument has already been made in cases relating to common law spouses at the high court level in, e.g., Murdoch v. Murdoch, Pettkus v. Becker, Sorochan v. Sorochan and Peter v. Beblow.

The other argument being made is regarding the inclusive nature of the definition of 'matrimonial property'. Any divorce is a traumatic experience -- costly both emotionally as well as financially. It would make sense if the legislation, instead of complicating matters, would rather try to simplify divorce procedures that would not cause so much drain on the parties. Inclusive nature of property is one thing that can be simplified. For example, items of personal nature, children's effects, and things mainly used by a single spouse need not be included. In deed the whole household contents need not be valued at tremendous cost and conflict. They should be divided between the divorcing couples.

In the context of the South Asian couple, jewellery and other items of dowry, can become a bone of contention. Whereas the woman can say I want all my dowry or marriage gifts given to the bridegroom and his family be returned, the groom can argue that all jewellery whether given by him or his family and by the woman's relatives be valued and included in the NFP. This can complicate already complicated matters.

Questions seeking Answers

1. How can the financial position of a working married woman living in a joint family situation with her husband's parent be protected or enhanced in a jurisdiction which allows for equal distribution of family assets at marriage breakdown?

2. What does marriage mean? Does a person marry a person, or into a family?

3. How, in western society, could the wider family be regarded as a legitimate 'target' for division of assets?

4. Would this broader recognition of the contribution the wife makes to the household, than has hitherto been granted, even in the English discretionary system where contribution to the 'family' is allowed to be taken into account?

Issues for consideration:

1. Unjust enrichment of in-laws;

2. Constructive trust;

3. Personal property;

4. Children's effects; who owns them;

5. valuation vs. division;

6. Jewellery;