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

Jump to navigation Jump to search

Married Spouses and the Law on Marriage (view source)

Revision as of 18:01, 28 March 2013

7 bytes added ,  18:01, 28 March 2013
no edit summary
Line 14: Line 14:


*'''Relatedness:''' the spouses cannot be within the prohibited degrees of relatedness set out in the ''Marriage (Prohibited Degrees) Act''.
*'''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.
*'''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.
*'''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.
*'''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.
*'''Solemnization:''' the marriage must be performed by a person authorized by the government of British Columbia to perform marriages.
Line 36: Line 36:
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.
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.
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===
===Foreign marriages===
Line 60: Line 60:
#one or both of the spouses were already married at the time of the marriage.
#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''.
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==
==Voidable marriages==
Line 97: Line 97:
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.
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 Supreme Court, ''[http://canlii.ca/t/1q1m1 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:
A 2004 case of the BC Supreme Court, ''[http://canlii.ca/t/1q1m1 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,
#there had been no consummation of the marriage,
Line 117: Line 117:
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:
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,
*a divorce,
#custody of and access to any children born of 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
*child support for any children born of the marriage as well as for any stepchildren, and
#spousal support.
*spousal support.


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


#parental responsibilities and parenting time in respect of any children,
*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,
*child support for any children born of the marriage as well as for any stepchildren,
#spousal support',
*spousal support',
#a share of the family property and any family debt,  
*a share of the family property and any family debt,  
#an order protecting property, and
*an order protecting property, and
#a protection order if he or she feels at risk of family violence.
*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.
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.
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/2597"

Navigation menu