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

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.

The requirements of a valid British Columbia marriage are these:

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

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.

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:

#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 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:

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

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''.

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 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.

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.

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

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

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.

#spousal support.

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

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