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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= July 12, 2023}} | ||
{{LSLAP Manual TOC|expanded = family}} | {{LSLAP Manual TOC|expanded = family}} | ||
== III. Marriage == | == III. 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 | Marriage creates a legal relationship between two people, giving each certain legal rights and obligations. A legal marriage must comply with certain legal requirements. Therefore, not all marriages are legally recognized. | ||
=== 1. Legal Requirements and Barriers === | === 1. Legal Requirements and Barriers === | ||
To be | To be legally recognized or considered “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 marriages 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 ==== | ==== a) Sex ==== | ||
In the past, spouses had to be of opposite | In the past, spouses had to be of opposite sexes. This has been found to be unconstitutional (see [http://canlii.ca/t/1jdhv ''Reference re Same Sex Marriage'', [2004<nowiki>]</nowiki> SCR 698, [2004<nowiki>]</nowiki>, 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 [http://canlii.ca/t/7w02 ''Civil Marriage Act'', SC 2005, c 33]. | ||
==== b) Relatedness ==== | ==== b) Relatedness ==== | ||
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==== a) Wills, Estates and Succession Act (which came into force March 31, 2014) [WESA] ==== | ==== a) Wills, Estates and Succession Act (which came into force March 31, 2014) [WESA] ==== | ||
''WESA'' is available online at CanLII: | ''WESA'' is available online at CanLII: https://canlii.ca/t/55nwv | ||
Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminates the relationship (s 2(2)(b)). | Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminates the relationship (s 2(2)(b)). | ||
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==== b) Canada Pension Plan Act, RSC 1985, c C-8 ==== | ==== b) Canada Pension Plan Act, RSC 1985, c C-8 ==== | ||
Available online at: | Available online at: hhttps://laws-lois.justice.gc.ca/eng/acts/c-8/index.html | ||
Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office. | Common-law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office. | ||
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==== c) Workers’ Compensation Act, RSBC 1996, c 492 ==== | ==== c) Workers’ Compensation Act, RSBC 1996, c 492 ==== | ||
Available online at: | Available online at: https://canlii.ca/t/55qlz | ||
A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient. | A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient. | ||
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==== d) Employment and Assistance Act, SBC 2002, c 40 ==== | ==== d) Employment and Assistance Act, SBC 2002, c 40 ==== | ||
Available online at: | Available online at: https://canlii.ca/t/5571q | ||
A common-law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1). Common law relationships are dealt with as marriages, and as single-family units where there are children. | A common-law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1). Common law relationships are dealt with as marriages, and as single-family units where there are children. | ||
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Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute. | Marriage agreements, sometimes colloquially referred to as pre-nuptial agreements, are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute. | ||
Those interested in drawing up marriage, cohabitation, or pre-nuptial contracts on their own can be directed to the self-help kit. However, contracts drawn up using self-help kits are often overturned in Court. Independent legal advice is extremely important | Those interested in drawing up marriage, cohabitation, or pre-nuptial contracts on their own can be directed to the self-help kit. However, contracts drawn up using self-help kits are often overturned in Court. Independent legal advice is extremely important to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a cohabitation or marriage agreement are strongly encouraged to seek the advice of a lawyer. | ||
=== 2. Legislation: Family Law Act [FLA] === | === 2. Legislation: Family Law Act [FLA] === | ||
The new ''FLA'' attempts to increase the enforceability of marriage and cohabitation agreements, and to provide clearer guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties whether | The new ''FLA'' attempts to increase the enforceability of marriage and cohabitation agreements, and to provide clearer guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties regardless of whether a family dispute resolution professional has been consulted and/or the agreement has been filed with a court. Agreements will be binding on a person who is under 19 years of age if they are parents or spouses (Part 2, s 6). | ||
Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if: | Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if: | ||
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*c) The degree to which the spouses relied on the terms of the agreement. | *c) The degree to which the spouses relied on the terms of the agreement. | ||
The ''FLA'' is drafted to make it harder for courts to set aside agreements | The ''FLA'' is drafted to make it harder for courts to set aside agreements due to perceived unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (See [http://canlii.ca/t/g6t11 ''Thomson v Young'', [2014<nowiki>]</nowiki> CarswellBC 1287 (BCSC)]). | ||
The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached ([http://canlii.ca/t/g0jhk ''Asselin v Roy'', 2013 BCSC 1681]). | The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached ([http://canlii.ca/t/g0jhk ''Asselin v Roy'', 2013 BCSC 1681]). | ||
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Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)). | Agreements made about parenting are not binding unless made after separation or when parties are about to separate with the purpose of being effective upon separation (s 44(2)). | ||
''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length in this chapter. | ''FLA'' section 44(3) holds that the written agreement may be given the force of a Court order if it is filed in a Supreme Court or Provincial Court registry. A Court must alter or set aside the terms of a parenting agreement if they are found not to be in the best interests of the child (s 44(4)), a concept discussed at length later in this chapter. | ||
Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' | Section 58 of the ''FLA'' outlines guidelines for agreements regarding contact with children. The ''FLA'' emphasizes the importance of the "best interests" test, upgrading it from the “paramount” consideration to the “only” consideration. For more information on Parenting Time, see [[Parenting Time, Guardianship, and Access (3:XI) |Section XI: Parenting Time, Guardianship, and Access]]. | ||
==== b) Child Support ==== | ==== b) Child Support ==== | ||
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==== d) Void Conditions ==== | ==== d) Void Conditions ==== | ||
Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating | Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating that one spouse shall do all the cooking is a contract for personal services; therefore, it is not enforceable. A breach of such an agreement cannot be grounds for divorce. | ||
:'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See [http://canlii.ca/t/1d921 ''Clarke v Clarke'' (1991), 31 R.F.L. (3d) 383 (BCCA)]. | :'''NOTE:''' Consider whether a marriage agreement should contain a clause stating: “Anything held to be void/voidable will be severed from the agreement leaving the rest of the agreement intact”. This prevents the whole of a marriage agreement being voided by the inclusion of void conditions or clauses. See [http://canlii.ca/t/1d921 ''Clarke v Clarke'' (1991), 31 R.F.L. (3d) 383 (BCCA)]. | ||
:'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted | :'''NOTE:''' Consider whether any agreement should contain a clause stating that the greater detail in the Agreement does not merge with any later Order. This ensures that if a Divorce Order is granted later, the terms of the Agreement continue to apply unless expressly stated otherwise. This is more applicable to Separation Agreements. | ||
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