SECTION 393 OF THE CIVIL CODE OF QUEBEC DENIES SPOUSES’ BASIC FREEDOM OF CHOICE
Article 16(3) of the Universal Declaration of Human Rights states: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.
Please sign the petition Quebec Spouses’ Right to Choose Their Family Name
Like any democratic country, Canada cherishes and protects individual and collective freedoms and rights. One such value is the declaration and recognition of equality between women and men.
But this equality did not exist in Canada since its inception.
As part of the new world, Canada had to lay the bricks of future democratic institutions and forged the shield of human rights and liberty. Following the history of women’s status in other European societies, at the start of this nation, women similarly had no rights. Women were not even considered “persons”. A patriarchal society took decisions for them, ruling the do’s and don’ts. A woman’s fate was largely determined and shaped by her father or brother.
Women’s rights pioneers had a long way to go
One emblematic figure among those women who ignited the fight for their rights is Nellie McClung. She embarked on a strenuous battle for women’s right to vote, free medical and dental care for children, mothers’ allowances, liberalized birth control, divorce laws and improved property rights for married women. She fought for women to be considered “persons” and be given the right to be appointed to the Canadian Senate.
The British North America Act, or BNA Act, of 1867, created the Dominion of Canada and provided many of its governing principles. The BNA Act used the word “persons” to refer to more than one person, and “he” to refer to one person.
A ruling in British common law in 1876 emphasized the problem for Canadian women by saying “Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.”
1912 marks a turning point in the odyssey of women’s struggle for their rights, as it is the year when the first woman in the Canadian history was appointed full professor at McGill University in Montreal.
In 1917, the Alberta Supreme Court ruled that women were persons, a ruling that only applied within the province of Alberta.
In the 1920s, five women from Alberta, now known as “the Famous Five”, fought a legal and political battle to have women recognized as persons under the BNA Act and a new era for women began as the Judicial Committee ruled that Canadian women were, in fact, persons and could be appointed to the Senate.
On October 18, 1929, Lord Sankey, Lord Chancellor of the Privy Council, announced the British Privy Council decision that “yes, women are persons … and eligible to be summoned and may become Members of the Senate of Canada.”
But, in spite of finally being considered “persons”, women still had no right to vote.
Canada was way far behind Europe where the first country to introduce women’s suffrage was the Grand Principality of Finland by producing the world’s first female members of parliament as a result of the 1907 parliamentary elections.
In 1925, Newfoundland and Labrador gave women over 25 years of age the right to vote.
In a climate of radical civil rights changes in English Canada, Quebec was still dormant, anchored in another epoch.
Fifteen years are still to pass until Quebec decides to give women the right to vote. Quebec is practically the last province to recognize this fundamental right in April of … 1940.
In Quebec, nothing was gained easily, nothing came quickly.
Men were gods; women were birthing and cooking machines. Men were mighty persons, women were anything but persons. Men were leaders; women were the mass of non-persons to be lead as if they were mute, deaf and blind. Women were the sheep, men were the shepherds.
Sadly, a similar attitude exists in Quebec today.
The insolent Section 393 of the Civil Code of Quebec stipulates that women and men in Quebec must exercise their civil rights under their maiden name.
Today, a married woman who lives in Quebec is FORCED by law to retain her maiden name and her maiden name (i.e. her father’s name!) is what defines her in all legal documents (health card, driver’s license, passport, credit card, etc).
This rule applies to all spouses domiciled in Quebec, even if they were married outside Quebec.
The law is a painful reminder of how women used to be treated 70 years ago.
Today, again, women are muted, this time by the “emancipated” post-1980 Civil Code.
Until the late 1960s, early 1970s, it was customary for women to take their husband’s surname and drop their maiden name, although their legal name has always been their maiden name.
However, women married before April 2, 1981 who were already using their husband’s surname before that date may continue to exercise their civil rights under their married name.
The origins of this bizarre law go back to the creation of the Quebec Charter of Rights, which clearly defined equality between men and women. And, bafflingly, this equality was proclaimed and institutionalized by … forcing women to remain “maidens”.
Quebec’s Civil Code denies women’s basic freedom of choosing her family name after marriage and ignores cultural tradition regarding marriage.
If in the rest of Canada women are given the choice of officially using their married name, Quebec is anchored in a law that, in the name of “women’s freedom”, paradoxically perpetuates the condition of denying women freedom of choice.
Different countries and cultures have different customs
Not changing surnames is frequent for celebrities, but even so, many simply choose to add their married name next to their maiden one.
In some countries, traditions are emotionally significant and changing a maiden name to a married one is an important and long waited moment in a woman’s life.
Many Arab and Indonesian societies commonly do not have family names in the English sense of the term. If keeping your maiden name is perfectly acceptable for Chinese, Korean, Iranian or Arab women, which are cultures where women usually do not change their name after marriage, to numerous European women, not having the legal right to use their husbands’ surnames is disrespectful to their freedom of choice and cultural practices.
In Brazil, until the recent reform of the Civil Law, women had to take their husbands’ surnames; not doing so was seen as evidence of concubinage.
In Japan, marriage law requires that legally married couples share a surname which can be the bride’s or the groom’s.
French women do not legally change names when they marry. However, it is customary that they take their husband’s name as “usage name”. This is not a legal obligation and not all women decide to do so.
In Hungary, both the bride and the bridegroom have to declare before the wedding which name they will use, a family sharing a common surname.
In Germany, the name law is ruled by sexual equality since 1994: the woman can adopt her husband’s name or vice-versa.
Also, in Dutch tradition, marriage requires the female to drop her maiden name and take on the husband’s name. The current Dutch law gives people more freedom: upon marriage, both partners keep their own surname, but are given the choice to use their partner’s surname, or a combination of both.
In Romania, a woman has the choice to take her husband’s name or may request to keep her maiden name after marriage.
As a social convention, in many cultures married women are called “Mrs. Husband’s name” and unmarried women, or divorced (sometimes even after divorce, many women choose to keep their married name) are automatically called “Miss Maiden name”, irrespective of their age.
It is interesting to notice how in Quebec a woman is forbidden from taking her husband’s surname after marriage, but a pardoned criminal has the right to change his/her name, in order to “protect” himself/herself and begin a new life.
A new life… Isn’t marriage the beginning of a new life? Isn’t marriage another stage in someone’s life?
Marriage is an institution which joins together people’s lives in emotional and economic ways. Even if, in our modern times, there are many critiques of the institution of marriage developed from a feminist viewpoint, suggesting that marriage can be particularly disadvantageous to women economically and socially, I believe that imposing any directions in this respect is infringement upon our human rights and personal choices.
Marriage symbolizes and comes with a baggage of feelings and change. It is a change of status and many women wish to indicate this change by taking their husband’s name.
It is a new position in the community and everybody knows that you got married because you sign as “Mrs Husband’s name”.
Taking a married name serves as daily and public marker of the marital union and the rights afforded thereto. As well, let’s not forget the emotional aspect.
Name change is a basic legal act that is recognized in practically all legal systems to allow an individual the opportunity to adopt a name other than the name given at birth, marriage, or adoption.
It is a fundamental human right blatantly ignored by the Civil Code of Quebec .
Though some feminists have asserted that taking a marital name detracts from the individual worth of the spouses, I consider that it is up to each couple to judge this and take a personal decision.
I do not believe that feminists are being forced to anything against their will. Since they have the choice of not getting married, of not having a father for their children and the right of keeping their maiden surnames, I consider that those women who, on the contrary, want to legalize a relationship by marriage, have a father for their child and use their husband’s surnames should be given equal understanding, respect, juridical and social support.
Lesbians and gay couples have received the right to marry and adopt children. Religious, sexual minorities have turned the world upside down and the world has decided to grant their more or less queer requirements. In this whirlpool of requests and approvals, spouses in Quebec have been completely forgotten.
When you book a hotel room under different names, it is as if you were not a couple, but some adults having an affair. For many women, this is humiliating. No matter how widely non-marital relationships are socially accepted, some women are still uncomfortable presenting themselves such as.
In many cultures, a married couple uses the same surname. This is the social mark of a family, the mark of a couple legally married, who took joint responsibilities. In many cultures, if a woman lives with a man and doesn’t use his surname, it signifies that they are not married ( non-marital relationship). In many cultures, not being married signifies lack of commitment.
Marriage is not a simple event. Marriage means a new life, with a new name, perhaps a new country and culture. Some women practice their new signature with emotion. For many, the first document signed as “Mrs. Husband’s surname” is regarded as a precious memory. Some women simply like to be called “Mrs. Husband’s surname”.
To many, a letter or a postcard received in the mailbox on two different names is not addressed to a family. Quebec is forcing the couple in this daily, continuous state of name-segregation, constantly reminding them that, in the eyes of the law, they are and must remain separated by their name.
If some women do not wish to change their names and choose to keep for the rest of their lives their maiden ones, it is their choice and the law must protect this choice.
But other women or men who desire to use their spouse’s surname should also be given the choice to choose which name they wish to officially use upon their marriage.
The law should legitimize both options.
Freedom of choice
I request Section 393 of the Civil Code of Quebec be amended. As nobody forces a woman or a man to take the spouse’ name upon marriage, nobody should force spouses the opposite either.
I believe that the mentality according to which taking your husband’s surname symbolizes submission and you become his “propriety” belongs to the pioneering years of women’s fight for their freedoms and emancipation.
We do not have to wear trousers or smoke with ostentation in public anymore to prove that we are free. Sexual revolution and a tolerant society have made everything acceptable: teenage mothers, fatherless children, prostitution, etc.
What was long ago a gesture of rebellion against social taboos has become in our days as common as eating an apple.
I find it hard to believe that feminists would not agree that the archaic, rigid and sexist Civil Code of Quebec acts exactly against our freedoms, thus its compulsory nature must be abolished.
Some feminists could argue that I am asking to change one “ownership” (father) to another one (husband). If by using someone’s name we show ownership, then they are right. But aren’t themselves “owned” by their fathers as they choose to live and die using their maiden aka father’s name?
I would like to remind them that, by keeping their maiden names they are, in fact, preserving and protecting their fathers’surnames (how feminist is this?). They should use their mother’s names or create a new one for themselves. Would this finally break the circle of “ownership”?
Also, I would not call it “ownership”, but unity. A family is a unit, a team and its members share a house, the bills, raising the children, all the happy or sad moments, success and hardship.
A common surname symbolizes strength, bondage, kinship.
What is the message sent by families with children who have one surname and their mother a different one?
It sounds more like a family with children from previous marriages.
What is sadder than seeing a mother’s surname separated by law from that of her children’s?
If children born in a name-segregated family usually go by their father’s names (why not by their mother’s?), what about those who decide to give the boy his father’s name and the girl her mother’s name?
Also, why are these hardcore feminists who militate to retain their maiden names so comfortable with their children to go by their fathers’ name? Isn’t this self-effacement?
Why is sharing the same surname considered detrimental to each partner’s “freedoms”?
It sounds more as if today’s women are not willing to commit to the notion of family and one family name out of fear of being considered old-fashioned, narrow-minded or even less educated as a study claims to be the reality in the Netherlands (Marret Noordewier, Femke van Horen, Kirsten Ruys and Diederik Stapel: ‘What’s in a Name? The Effects of Marital Name Change’, Basic and Applied Social Psychology, Volume 32, Issue 1 March 2010.).
But why do women have to be unmarried, single mothers, artificially inseminated, lesbian or use their maiden name in order to be considered powerful, independent and successful?
Is there one feminist to claim that Michelle Obama is a weak person or suggest that she is not independent or she is nothing but an attachment to her husband’s name?
Is there one feminist to claim that Margaret Thatcher was her husband’s marionette?
Keeping one’s maiden name is and sounds like an old fight. It was the perfect way to rebel as, in the old days, nothing was more powerful than a woman not taking her husband’s name.
Today, women are not forced and expected to go by their married names anymore, and I totally agree with this. But women should NOT BE FORCED to keep their maiden names either.
Also, last but not least, we should consider the convenience of a new name for various reasons: it sounds better, it fits with your given name better, you like to write it, you like to sign with it, yours is ugly, mispronounced, misspelled or too common, acoustically embarrassing; one could change a name to simply punish abusive parents, to dissociate from an adoptive father or leave behind a period of her life, an identity, memories, etc.
I received responses from the Canadian Human Rights Commission (June 18, 2007) and the Commission des droits de la personne et des droits de la jeunesse (August 2, 2007), but they do not consider that the case of a woman who wants to use her married name in all official documents an issue of human rights.
Since their answer was not satisfactory, I decided to send a letter to Prime Minister Jean Charest. The answer I received from France Lessard, Director of Administration and Correspondance (August 22, 2007) says: “Dear Mrs. Lussier, On behalf of the Premier of Quebec, Mr. Jean Charest, I acknowledge receipt of your letter dated August 12, 2007. Your query falls under the mandate of Mr. Jacques P. Dupuis, ministre de la Justice, and will be passed on to him for consideration.”
On October 17, 2007 I received a response from the Gouvernment du Quebec, Le cabinet du minister de la Justice et Procureur general. The letter, signed by Ms Lysiane Bouclin, states that before 1980, women in Quebec had to use their husband’s surname after marriage. In 1980, pressured by feminist groups, the Civil Code was changed, institutionalizing thus the obligation for a woman to retain her maiden name after marriage.
A message from the Directeur de l’état civil states that Section 393 of the Civil Code of Québec received on January 16, 2012 and signed by Ms Karen Pick states : “In marriage, both spouses retain their respective names, and exercise their respective civil rights under those names.”
Basically, one compulsion was replaced by another one. What is difficult to understand is that feminist groups consider such law compatible with the notion of women’s liberation and freedom of choice.
I am not asking for anything that is not known or used in the rest of Canada.
I am not asking for the enactment of an utterly foreign, non-western concept in the body of the Canadian law or society.
I am only asking that women who live in Quebec have the same rights as women in English Canada.
Also, in the case of immigrant women who marry Quebecers, changing the surname would give them a better chance to feel integrated in this society.
Married men are also deprived of their freedom of choice, but I think that the issue affects more women than men as fewer men wish to take their wife’s surname.
It is time to put an end to this diminishing and dictatorial law and give spouses in Quebec FREEDOM OF CHOICE.
September 26, 2007/Updated in 2011
I received a letter from the Ministry of Justice signed by Ms Valerie Chausee on behalf of Ms Nadine Koussa, Ms Koussa being a political advisor. I was assured that my letter would be brought to the attention of our Minister of Justice, Mr Bertrand St-Arnaud.
They received my letter on January 24, 2013. They sent a response dated March 1,2013.
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