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 s 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.