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Difference between revisions of "Married Spouses and the Law on Marriage"
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Married Spouses and the Law on Marriage (view source)
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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. | 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 | For a quick summary on getting married ion 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. | ||
===Relatedness=== | ===Relatedness=== | ||
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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. | 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 | 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=== | ||
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A marriage will be void ''ab initio'' if: | 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]]''. | 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== | ||
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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: | 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. | 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. | ||
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===Consent and duress=== | ===Consent and duress=== | ||
As with any contract, which is how marriage was historically described, if either party has not properly given | 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=== | ||
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A 2004 case of the British Columbia 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 British Columbia 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, | |||
#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. | |||
==Invalid marriages== | ==Invalid marriages== | ||
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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. | 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; | 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; is. 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== | ==Married spouses' rights and responsibilities== | ||
