Marriage & Married Spouses
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.
This section discusses the legal requirements of a valid marriage. It looks at void marriages and voidable marriages (there is a difference), and at marriages that are invalid. It also discusses the legal rights resulting from marriage.
- 1 Legal requirements of marriage
- 2 Void marriages
- 3 Voidable marriages
- 4 Invalid marriages
- 5 Married spouses' rights and responsibilities
- 6 Resources and links
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 related lineally, or as brother or sister or half-brother or half-sister as 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.
For a quick summary on getting married in British Columbia, see How Do I Get Married in British Columbia?. It's located in the section Marriage, Separation & Divorce in the How Do I? part of this resource.
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 and cannot marry, while, on the other hand, first cousins are free to marry if they don't mind banjo music. A marriage that violates this requirement is void ab initio, that is, the marriage is void as if it had never occurred.
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 provided 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.
Two rules of the common law govern the validity in British Columbia of marriages performed outside the province:
- 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.
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. A marriage occurring in a place where it 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.
A marriage that is void ab initio, void "from the beginning," is void as if it had never been celebrated. In general, an application to the court is not required to dissolve a marriage that 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:
- 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.
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.
A voidable marriage is a marriage that 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:
- 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.
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 that 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 their 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 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 the identity of one of the spouses 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 British Columbia 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:
- 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, an error in the marriage ceremony, or errors in the parties' marriage license.
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 license won't invalidate a marriage entered into in good faith; section 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 is no legislation that defines the duties involved in marriage.
- a divorce, to legally end the marriage,
- 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 for and parenting time with 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 they feel 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.
- Vital Statistics Agency: Search for marriage commissioners
- Vital Statistics Agency: Marriage registration and certificates information
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Wright and Michael Sinclair, April 17, 2019.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court," and "Supreme Court of Canada."
A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship."
The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of."
A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."
The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec.
An act; a statute; a written law made by a government. See "regulations."
The age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant."
Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity or adoption. See "marriage," "Marriage (Prohibited Degrees) Act," and "marriage, validity of."
In family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent."
Intentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."
A mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision," and "declaration."
In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."
The place where one has one’s permanent home, where one lives most of the time; sometimes the place where one intends to have a permanent home. A party's domicile may have an impact on the jurisdiction of the court to hear a court proceeding, deal with certain claims made in a court proceeding, or determine the applicable law for dividing up property and debt. See "jurisdiction" and "residence."
In law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order."
The assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.
A declaration by a judge that a marriage is invalid. The effect of such a declaration is to cancel the marriage from the moment it took place, as if the marriage never occurred. See "ab initio," "declaration," and "marriage, validity of."
Forcing someone to do something through psychological or emotional pressure; a defence to the enforcement of a contract. If, for example, a separation agreement was entered into under duress, that may be a ground to dispute or set aside that agreement.
The use of force or intimidation, whether emotional or physical, to compel another person to do something; interference with another person's freedom of choice to obtain an outcome, action, or behaviour.
Acts or words tending or intended to give a misleading or false impression as to the true state of affairs. See "bad faith."
In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent."
An agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.
In law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument.
In law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact."
A party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court it also means the person who starts a court proceeding. See also "court proceeding," "application respondent," and "interim application."
Acting in an honest, truthful, open, and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase bona fide. See "bad faith."
In family law, an antiquated term used by the Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare, and upbringing. See "access."
Under the Divorce Act, the schedule of a parent's time with their children under an order or agreement. Access usually refers to the schedule of the parent with the least amount of time with the child. See "custody."
Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.
A payment made by one spouse, the payor, to the other spouse, the recipient, to help with their day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.
A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian."
A term under the Family Law Act which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian."
A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property."
A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.
Something which can be owned. See "chattels" and "real property."
An order available under the Family Law Act for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting, or stalking a person, and restraining someone from going to a person's home, place of employment, or school. See "application," "ex parte," and "restraining order."