Difference between revisions of "Married Spouses and the Law on Marriage"

{{JP Boyd on Family Law TOC|expanded = relationships}}

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Marriage creates a legal relationship between two people, a relationship that gives each spouse legal rights and obligations towards each other on top of whatever promises they may have made during their marriage ceremony. A proper marriage must comply with certain legal requirements, however, and as a result not all marriages must be ended by divorce. Some marriages are invalid from the start and can be annulled.

*'''Relatedness:''' the spouses cannot be within the prohibited degrees of relatedness set out in the ''Marriage (Prohibited Degrees) Act''.

Being of opposite genders used to be one of the requirements for a valid marriage. Gay and lesbian couples have been able to marry in British Columbia since 8 July 2003. On 20 July 2005, with the passage of the ''Civil Marriage Act'', same-sex couples became able to marry throughout Canada.

In other words, adopted siblings as well as birth siblings are within the prohibited degrees of consanguinity, while, on the other hand, first cousins are free to marry. A marriage that violates this requirement is void ''ab initio'', that is, the marriage is void as if it had never occurred.

#the formalities of the marriage (the mechanics of the marriage ceremony) are those of the law in the place where the marriage occurred, and

#the legal capacity of each party to marry is governed by the law of each party's domicile.

#one or both spouses were seven years old or younger (the absolute minimum age required to consent to marry under the old common law),

#the spouses were within the prohibited degree of relatedness,

#one or both of the spouses did not have the mental capacity to marry, or

#one or both of the spouses were already married at the time of the marriage.

#the spouses were over seven years of age, but a female spouse was under the age of 12 or a male spouse was under the age of 14 (the old common-law ages of puberty),

#one or both of the spouses did not consent to the marriage or were under duress or some other kind of coercion when they married,

#a male spouse is impotent or a female spouse is sterile going into the marriage,

#the marriage cannot be consummated,

#the marriage was a sham, or

#one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

As with any contract, which is how marriage was historically described, if either party has not properly given his or her consent or was under some sort of duress or coercion in agreeing to the marriage, the marriage may be voidable. Essentially, the argument here is that you didn't go into the marriage of your own free will; you were forced into it.

Fraud and misrepresentation, terms found in the law of contracts, may also make a marriage voidable. If misrepresentation is claimed, the deception must usually be as to identity or some other material fact about the marriage itself, rather than about something like income or social standing. A classic case of fraud and misrepresentation involved the marriage of a woman to the identical twin of the man whom she had been dating and had intended to marry; the marriage was declared void on the wife's application once the deception was discovered.

<span class="noglossary">case</span>, and many people think this is still true, that if the spouses never had sex the marriage was voidable. The common law has developed in a somewhat different direction. A spouse must have either a complete inability to have sex because of some physical problem, or an "invincible repugnance" to the prospect of sex which is psychological in nature. Be warned that one instance of consummation will defeat either spouse's ability to claim inability to consummate as a ground of voidability.

A 2004 case of the BC Supreme Court, ''[http://canlii.ca/t/1q1m1 Grewal v. Sohal]'', 2004 BCSC 1549, reviewed the law on applications to annul a marriage based on non-consummation. The court held that the applicant must prove that:

#there had been no consummation of the marriage,

#the refusal to consummate the marriage was persistent and not due to capricious obstinacy,

#the applicant has an invincible aversion to sex with the other spouse,

#the aversion was the result of some sort of incapacity, and

#the incapacity may be based on normal, predictable reactions.

An invalid marriage is a marriage that does not comply with the formalities of marriage. These formalities include the authority of the person conducting the marriage to actually perform the marriage, the age of the parties, or errors in the parties' marriage licence.

There is a common-law presumption that a marriage should not be declared invalid merely because the marriage didn't meet the required formalities, and the court will try to uphold invalid marriages when it can. Section 16 of the provincial ''Marriage Act'' provides, for example, that irregularities in a marriage licence won't invalidate a marriage entered into in good faith; s. 11 similarly provides that a marriage conducted by an unauthorized person won't be declared invalid if the marriage is unchallenged.

While a couple is married, the federal ''[http://canlii.ca/t/7vf2 Criminal Code]'' requires each spouse to provide the other with the "necessities of life," whatever that means. Apart from that, there are no laws that define the duties involved in marriage.

 

When a married couple separates, each of the spouses has certain rights under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''.  

Under the ''Divorce Act'', a spouse can ask for:

*a divorce,

*a protection order if he or she feels at risk of family violence.

* [http://www.vs.gov.bc.ca/marriage/ Vital Statistics Agency: Marriage registration and certificates information]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}