Married Spouses and the Law on Marriage

Marriage creates a legal relationship between two people, a relationship which gives each spouse certain 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.

This page discusses the legal requirements of a valid marriage, void marriages, voidable marriages (there is a difference) and marriages that are invalid, as well as the legal rights resulting from marriage.

Legal requirements of marriage

The legal requirements of a valid, legal marriage are governed by the common law, the federal Marriage (Prohibited Degrees) Act, the federal Civil Marriage Act and the provincial Marriage Act. The difference between the first two pieces of legislation and the last is that under our Constitution, only the federal government has the authority to pass laws dealing with marriage and divorce, while only the provincial governments have the authority to pass laws dealing with the mechanics of how marriages are performed.

The requirements of a valid British Columbia marriage are these:

• Relatedness: the spouses cannot be within the prohibited degrees of relatedness set out in the Marriage (Prohibited Degrees) Act.
• Marital status: both spouses must be unmarried at the time of their marriage.
• Mental capacity: both spouses must have the mental capacity, at the time of the ceremony, to understand the nature of the ceremony and the rights and responsibilities marriage involves.
• Age: with some exceptions, both spouses must be of the age of majority or older.
• Solemnization: the marriage must be performed by a person authorized by the government of British Columbia to perform marriages.

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.

Relatedness

Section 2(2) of the federal Marriage (Prohibited Degrees) Act states that:

No person shall marry another person if they are related

(a) lineally by consanguinity or adoption;

(b) as brother and sister by consanguinity, whether by the whole blood or by the half-blood; or

(c) as brother and sister by adoption.

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 which violates this requirement is void ab initio, that is, the marriage is void as if it had never occurred.

Age

Both parties must, in general, be over the age of majority. Under the provincial Marriage Act, however, a marriage may still be valid as long as both parties were 16 years of age or older and providing that the marriage was necessary and in the best interests of both parties.

Interestingly, the Act might be read in such a way that the marriages of girls as young as 12 and boys as young as 14, the old common law ages of puberty, might still be considered to be valid. Since marriages between people this young are prohibited in Canada without a court order, this rule will only apply to preserve the marriages of young couples wed outside of Canada.

Foreign marriages

Two rules of the common law govern the validity in British Columbia of marriages performed outside the province:

1. the formalities of the marriage (the mechanics of the marriage ceremony) are those of the law in the place where the marriage occurred, and
2. the legal capacity of each party to marry is governed by the law of each party's domicile.

This means that people who live in British Columbia may be married elsewhere by a hairdresser holding a badger, for example, if the laws of that place allow hairdressers holding badgers to marry people (the formalities of marriage). On the other hand, if two 10 year olds who live in British Columbia are married outside of Canada by a priest or marriage commissioner, their marriage will be voidable (the capacity to marry), regardless of the local validity of the marriage ceremony.

Invalid foreign marriages may be considered, in exceptional circumstances, to be valid in Canada. For example, a marriage occurring in a place where is impossible for some reason to comply with the local law governing marriage, because of civil war or religious discrimination for example, might well be found to be valid in British Columbia.

Void marriages

A marriage which is void ab initio, void "from the beginning", is void as if it had never been celebrated. In general, an application to court is not required to dissolve a marriage which is void ab initio since such marriages are void from the get go. However, you may have to apply for a declaration that your marriage is void if someone is making a claim against you based on the fact that you are supposed to be married.

A marriage will be void ab initio if:

1. one or both spouses were seven years old or younger (the absolute minimum age required to consent to marry under the old common law),
2. the spouses were within the prohibited degree of relatedness,
3. one or both of the spouses did not have the mental capacity to marry, or
4. one or both of the spouses were already married at the time of the marriage.

It is important to know that even if a marriage is declared void, the parties may still have certain legal rights and obligations towards each other if they qualify as "spouses" under the provincial Family Law Act.

Voidable marriages

A voidable marriage is a marriage which is potentially void but remains valid until an application is made to the court for an annulment, a declaration that the marriage is void. A marriage may be invalid and annulled if:

1. the spouses were over seven years of age, but a female spouse was under the age of twelve or a male spouse was under the age of fourteen (the old common law ages of puberty),
2. 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,
3. a male spouse is impotent or a female spouse is sterile going into the marriage,
4. the marriage cannot be consummated,
5. the marriage was a sham, or
6. one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You must make an application to court for an annulment, a judicial declaration that your marriage is void. Without that declaration, your marriage will remain legal and binding. The court may refuse to cancel a marriage which is voidable.

It is important to know that even if a marriage is annulled, the parties may still have certain legal rights and obligations towards each other if they qualify as "spouses" under the provincial Family Law Act.

Consent and duress

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.

Sham marriages

Sham marriages are marriages that are entered into without the intention of the spouses to live as husband and wife, but rather for some other purpose, such as tax benefits or immigration status. While these marriages might be voidable for lack of intent, the courts have, in some cases, found them to be binding on the parties nonetheless. If you are thinking of marrying someone to help them get into Canada, think twice: you may not be able to get out of the marriage quickly if something goes wrong.

Misrepresentation and fraud

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.

Capacity to reproduce

A marriage may be voidable if either spouse lacked the personal capacity to have children going into the marriage.

Failure to consummate a marriage

It used to be the case, 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, 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:

1. there had been no consummation of the marriage,
2. the refusal to consummate the marriage was persistent and not due to capricious obstinacy,
3. the applicant has an invincible aversion to sex with the other spouse,
4. the aversion was the result of some sort of incapacity, and
5. the incapacity may be based on normal, predictable reactions.

Invalid marriages

An invalid marriage is a marriage which 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.

Married spouses' rights and responsibilities

While a couple is married, the federal 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 have certain rights under the federal Divorce Act and the provincial Family Law Act. Under the Divorce Act, a spouse can ask for:

• a divorce,
• custody of and access to any children born of the marriage,
• child support for any children born of the marriage as well as for any stepchildren, and
• spousal support.

Under the Family Law Act, a spouse can ask for:

• parental responsibilities and parenting time in respect of any children,
• child support for any children born of the marriage as well as for any stepchildren,
• spousal support',
• a share of the family property and any family debt,
• an order protecting property, and
• a protection order if he or she feels at risk of family violence.

All these issues except for divorce can be resolved by the spouses' agreement rather than be argued about in court. To get a divorce, the court must make a divorce order.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

• bulleted list of linked legislation referred to in page

FLA, DA, Civil Marriage Act, marriage prohibited degrees act, Marriage Act,

Links

• bulleted list of linked external websites referred to in page