Marriage (3:III)

A. Marriage

Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A marriage must comply with certain legal requirements. Therefore, not all marriages are valid.

1. Legal Requirements

To be valid, a marriage must meet several legal requirements. Failure to meet these requirements may render the marriage void ab initio (void from the beginning). In other circumstances, such as sham marriages or marriage in which one party did not consent or did so under duress, the marriage may be voidable, meaning the marriage is valid until an order is made by the Court to annul the marriage.

a) Sex

In the past, spouses had to be of opposite genders. This has been found to be unconstitutional (see Reference re Same Sex Marriage, [2004] SCR 698, [2004], SCJNo 75), and same-sex couples can now marry in every province and territory with the passing of Bill C-38 in the House of Commons, and subsequent passing in the Senate. Bill C-38 received Royal Assent on July 20, 2005 becoming the Civil Marriage Act, SC 2005, c 33.

b) Relatedness

The federal Marriage (Prohibited Degrees) Act, 1990, c 46, bars marriage between lineal relatives, including half-siblings and adopted siblings.

c) Marital Status

Both spouses must be unmarried at the time of the marriage. Both spouses must be over the age of majority (19 in BC; see the Age of Majority Act, RSBC 1996, c7). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of his or her parents (see the Marriage Act, RSBC 1996, c 282, s 28). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s 29). However, a marriage is not automatically invalid if the requirements of sections 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as husband and wife for some time).

d) Mental Capacity

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

e) Residency

The Civil Marriage Act, SC 2005, c 33 was passed in 2014. With this new act, marriages performed in Canada between non-Canadian residents will be valid in Canada, regardless of the law in either spouse’s country of residence. Additionally, Canadian courts will be able to grant divorces to non-resident spouses who were married in Canada, and who are unable to get divorced in their own state because that state does not recognize the validity of the marriage.

2. Foreign Marriages

The common law rule is that the formalities of marriage – i.e. who can marry, who can perform weddings – are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.

3. Sham Marriages

When parties marry solely for some purpose such as tax benefits or immigration status, the marriage may be voidable for lack of intent. However, the marriage may not be void for lack of intent alone, and courts may find the marriage valid and binding when the parties consented to the union (for example, see Grewal v Kaur, 2009 Carswell Ont 7511, 84 Imm LR (3d) 227 (Ont SCJ). Sham marriages are uncommon.

4. Customary Marriage

The law recognizes traditional customary marriages of Aboriginal people in some circumstances where the marriage meets the criteria of English common law.

B. Common Law Relationships

1. General

Common law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (See Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; see Matteucci v Greenberg, 2014 BCSC 1434; Trudeau v Panter, 2013 BCSC 706 that merely living together does not mean a relationship is marriage-like).

Under the FLA, a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see CAM v MDQ, 2014 BCPC 110 regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship. Someone separating within two years of FLA coming into force is a spouse (Meservy v Field, 2013 BCSC 2378).

See Appendix A: Glossary at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.

Remember that a common law relationship is not a legal marriage. Nevertheless, where legal rights and obligations are conferred on common law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

2. Estate Considerations

a) Wills, Estates and Succession Act (which came into force March 31, 2014) [WESA]

WESA is available online at CanLII: http://canlii.ca/t/8mhj

Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminates the relationship (s 2(2)(b)).

If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.

If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.

b) Canada Pension Plan Act, RSC 1985, c C-8

Available online at: http://canlii.ca/t/7vfd

Common law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.

c) Workers’ Compensation Act, RSBC 1996, c 492

Available online at: http://canlii.ca/t/84g2

A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.

d) Employment and Assistance Act, SBC 2002, c 40

Available online at: http://canlii.ca/t/84l7

A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1). Common law relationships are dealt with as marriages, and as single-family units where there are children.

C. Marriage, Pre-Nuptial, and Cohabitation Agreements

1. General

Marriage or pre-nuptial agreements are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.

Those interested in drawing up marriage, cohabitation, or pre-nuptial contracts on their own can be directed to the self-help kit. However, contracts drawn up using self-help kits are often overturned in Court. Independent legal advice is extremely important in order to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a pre-nuptial agreement are strongly encouraged to seek the advice of a lawyer.

2. Legislation:

a) Family Law Act [FLA]

The new FLA attempts to increase the enforceability of marriage, cohabitation, and pre-nuptial contracts, and to provide clearer guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties whether or not a family dispute resolution professional has been consulted, and whether or not the agreement has been filed with a court. Agreements will be binding on children who are parents or spouses (Part 2, s 6).

Section 93(3) of the FLA also states that courts can set aside an agreement if:

• a) spouses do not make full and honest disclosure of all relevant financial information
• b) one spouse takes improper advantage of another’s vulnerability
• c) one spouse does not understand the nature or consequence of the agreement
• d) other circumstances that would cause, under common law, all or part of the contract to be voidable

The above concerns are often addressed by having the parties obtain independent legal advice. Section 93(5) of the FLA states that the courts can also set aside an agreement if they find the agreement substantially unfair after considering these factors:

• (a) the length of time that has passed since the agreement was made;
• (b) the intention of the spouses, in making the agreement, to achieve certainty;
• (c) the degree to which the spouses relied on the terms of the agreement.

The FLA is drafted to make it harder for courts to set aside agreements on the basis of unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (See Thomson v Young, [2014] CarswellBC 1287 (BCSC)).

The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Please note that section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached (Asselin v Roy, 2013 BCSC 1681).

Section 1 of the FLA provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.

3. Substance of Contract

The main part of the agreement usually deals with the division of property and debt in the event of a relationship breakdown. The agreement may provide for management and/or ownership of family assets during a marriage or cohabitation and/or when the relationship ends. The parties may also specify that neither party is responsible for debts of the other incurred either before or during the relationship.

While it was once against public policy to contract in anticipation of future separation, section 92 of the FLA explicitly anticipate such considerations in a marriage contract. Under the FLA, spouses can agree on how to divide family property, and what debts or items are eligible for division.

Section 93 of the FLA states that agreements respecting property division can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement.

According to section 93(4) and (5) of the FLA, the Court will only set aside an agreement on property under these sections “if the division agreed to would be ‘substantially different’ from the division that the Court would order and ‘significantly unfair’ to one of the spouses”.

a) Parenting Arrangements

Parenting arrangements are generally never in cohabitation or marriage agreements.

Parenting arrangements are covered by section 44 of the FLA. Please note that an agreement for contact is not an agreement for “parenting arrangements” and will not be enforced under this section.

Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)).

FLA section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)).

Section 58 of the FLA outlines guidelines for agreements regarding contact with children. The FLA only emphasizes the importance of the best interests test, upgrading it from the “paramount” consideration to the “only” consideration. For more information on Custody and Parenting, see Section X: Custody, Guardianship, and Access.

b) Child Support

Per section 148 of the FLA, an agreement respecting child support is binding only if the agreement is made after separation, or when the parties are about to separate, for the purpose of being effective on separation. It would thus not be binding if it is in a marriage/cohabitation agreement.

Courts can override or vary any such terms that are inconsistent with the Federal Child Support Guidelines (Young v Young, 2013 BCSC 1574) or with section 150 of the FLA [Determining Child Support]. Section 150 states that the amount of child support is to be determined by the Federal Child Support Guidelines (Thibault v White, 2014 BCSC 497). These guidelines have not been changed by the new FLA and old court decisions interpreting the guidelines continue to apply (SML v RXR, 2013 BCPC 123).

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and step-parents (See B (C) v B (M), [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be found invalid on public policy grounds. The Court will seldom uphold an amount lower than the guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See Section VIII: Spousal and Child Support.

c) Spousal Support

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the FLA, spousal support agreements that are filed with a Court registry will be treated as if an order of the Court (FLA, s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the Court finds that the agreement is significantly unfair (see s 164 of the FLA).See Section VIII: Spousal and Child Support.

d) Void Conditions

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating, “the husband shall do all the cooking” is a contract for personal services and is therefore not enforceable. A breach of such an agreement cannot be grounds for divorce.

NOTE: Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See Clarke v Clarke (1991), 31 R.F.L. (3d) 383 (BCCA).

NOTE: Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted at a later date, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements.