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Two women made grey divorce a little less grey

Helen Rathwell and Irene Murdoch went to court in separate cases and changed the way farming assets are divided

Hypothetical couple Greg and Mariah married in 1980. Their marriage was somewhat unconventional in that while they both worked on the farm — they bought things together, shared the housework, yard work, garden work and they both looked after child care — Greg did most of the housework, yard work, garden work and child care, and Mariah did most of the farming.

They liked it that way. It worked for them. Until the marriage quit working.

In the throes of a messy divorce in 2017, Mariah wondered if she didn’t deserve a little more than half of the shared assets, which now included a new house, two vehicles, more than 5,000 acres of owned and leased land, bins full of grain and a full line of new-to-them machinery and equipment.

She didn’t.

Amber Biemans, a lawyer with Behiel, Will & Biemans in Humboldt, Sask., explains: “The presumption that a spouse has a half-interest in all property acquired after marriage or common-law status is not dependent upon gender, whether the parties have children, amount or type of work during marriage, or the length of their relationship. The presumption is that all property acquired by either party after the commencement of a spousal relationship is equally shareable unless the court finds such a division to be inequitable. (Moreover), a farming wife who acquires assets in her sole name after marriage would be just as obligated to share the same with her husband upon the breakdown of their marriage as a farming husband who acquired assets in his sole name.”
Other stories from After the Farm, The Senior Side edition:

Grey divorce
Snowbirds must watch the calendar
Remarriage affects farm succession
Wills make divorce easier

Woman stayed with abusive husband for love of a farm

For this, Greg and spouses in a similar situation can thank two Canadian women they may never have heard of: Helen Rathwell and Irene Murdoch.

It was a different world when Irene and Alex Murdoch married in 1943. Immediately after their marriage they sought and found work together as hired farmhands. They saved their money and used it to buy farmland, which was, as was the custom in those times, put solely into the husband’s name.

As they settled into their own home in 1947, Irene’s involvement with ranch work continued.

In Irene Murdoch’s own words, in evidence given: “I did haying, raking, swathing, moving, driving trucks and tractors and teams, quietening horses, taking cattle back and forth to the reserve, dehorning, vaccinating, branding, anything that was to be done. I worked outside with him, just as a man would…”

She also operated the ranch during her husband’s substantial absences while he was tending other businesses.

During that time Alex Murdoch bought and sold properties of increasing value. The titles to these properties were all in his name. In 1968, when the marriage ended, that property was worth about $95,000 — $659,557 in today’s funds.

While the role that Irene Murdoch played in acquiring and running the ranch is seen as having significant value today, at the time that Murdoch vs. Murdoch was heard, non-owning spouses were not presumptively entitled to half of the matrimonial property, says Biemans.

“In fact, traditional wives upon being faced with a separation or divorce had the challenge of proving their entitlement in matrimonial property by demonstrating that a trust existed in which their husbands held a portion of the property on their behalf. To prove such trusts existed was difficult because the wife needed to demonstrate that she made financial contribution to the acquisition of the assets, and that at the time that assets were being purchased both parties had put their minds to a mutual intention of the wife having an interest in those assets.”

When her marriage ended, Irene Murdoch made a claim that her husband held her interest in the farmland in trust on her behalf. The case made its way to the Supreme Court of Canada where one of the five judges found that the duties she had routinely performed on the farm constituted an extraordinary amount of physical farm labour.

The other four judges disagreed. They found her efforts were not above what was expected of a farm wife.

And, despite the proven fact that she had made some financial contribution to the purchase of the farmland, the court found a trust did not exist as the parties did not have a common intention at the time of purchase for her to have an interest in that farmland.

When the Supreme Court of Canada found that Irene Murdoch was not entitled to half of the matrimonial property, there was a general outcry from the public and especially women’s rights groups.

When a skit about Murdoch’s nightmare toured through rural communities, “it struck the farm women like a thunderbolt,” one of the performers had said. “Each of them suddenly realized, ‘I am Mrs. Murdoch.’ ” (Globe and Mail, A century and a half of marriage, Zosia Bielski and Stephanie Chambers, Feb. 9, 2017.)

Though the Murdoch case garnered much attention it was not the only one of this kind. Times were changing. The status quo was no longer acceptable. About five years later, a similar case produced quite different results.

Lloyd and Helen Rathwell opened a joint bank account when they were married in 1944 and each deposited money they had saved. Throughout their 23-year marriage, it was the only account they ever had. All monies received and all sums paid passed through this single account for the whole of their married lives.

Mrs. Rathwell did the chores when her husband was busy on the land, she looked after the garden and canned the produce, she milked cows and sold the cream, she drove machinery, baled hay and provided meals and transportation for hired help. She kept the ranch’s books and records.

If Mr. Rathwell was otherwise engaged, she drove the school bus he was contracted to operate. She raised four children.

Like the Murdochs, all of the land was held solely in the husband’s name and the couple had never discussed her interest in the property.

Helen Rathwell’s claim for an interest in the property was rejected completely by the trial court but the Court of Appeal found that a trust existed in this case and that she had a half interest in all of the acquired farmland, with the exception of land that Mr. Rathwell’s mother had sold to him for a greatly discounted price.

The court found that Helen Rathwell had suffered a detriment from her labour, and that as a result of her efforts Mr. Rathwell received a corresponding enrichment that would be unjust to allow him to solely benefit from.

Lloyd Rathwell appealed this decision in the Supreme Court and was rejected.

Rather than placing the onus on Mrs. Rathwell to prove a common intention for a trust, the court ruled there is a “presumed common intention” for a trust when both parties contributed money to property, and that unless the parties had agreed otherwise, that each would have a half interest in assets purchased from common funds.

“It is notable,” says Biemans, that within approximately six years of the Murdoch decision, all of the Canadian provinces and territories had changed their matrimonial property laws to reflect the shift in societal values, such that upon separation or divorce there was a presumption of equal sharing of property attained by either party during marriage, regardless of how much they each contributed to its acquisition. This presumption and change in the law recognized that there was economic contribution and value to the family from a spouse that stayed at home to raise and care for the family.”

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