Difference between revisions of "Marriage (3:III)"

Both spouses must be over the age of majority (19 in BC; see the [http://canlii.ca/t/5224c ''Age of Majority Act'', RSBC 1996, c7]). In BC, a minor between the ages of 16 and 19 can marry only with the consent of both of his or her parents (see the [http://canlii.ca/t/52pxh ''Marriage Act'', RSBC 1996, c 282, s 28]). A minor under the age of 16 can marry only if permission is granted in a Supreme Court order (s  29). However, a marriage is not automatically invalid if the requirements of sections 28 and 29 have not been met at the time of marriage (s 30); the Court may preserve the marriage if it is in the interests of justice to do so (e.g., if parties have grown up and have lived as husband and wife for some time).

The common law rule is that the formalities of marriage – i.e. who can marry, who can perform weddings – are those of the law where the marriage took place, while the legal capacity of each party is governed by the law of the place where they live.  

== B. Common Law Relationships ==

Common law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (See [http://canlii.ca/t/1dz3n ''Takacs v. Gallo'' (1998), 157 D.L.R. (4th) 623] for a summary of the indicators to be considered when determining whether parties have lived in a  “marriage-like  relationship”; see [http://canlii.ca/t/g87vw ''Matteucci v Greenberg'', 2014 BCSC 1434]; [http://canlii.ca/t/fx5b2 ''Trudeau v Panter'', 2013 BCSC 706] that merely living together does not mean a relationship is marriage-like).  

Remember that a common law relationship is not a legal marriage. Nevertheless, where legal rights and obligations are conferred on common law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else.

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.

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.

== C. Marriage, Pre-Nuptial, and Cohabitation Agreements ==

Marriage or 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 in order to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a pre-nuptial agreement are strongly encouraged to seek the advice of a lawyer.  

The new ''FLA'' attempts to increase the enforceability of marriage, cohabitation, and pre-nuptial contracts, and to provide clearer guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties whether or not a family dispute resolution  professional has been consulted, and whether or not the agreement has been filed with a court. Agreements will be binding on children who are parents or spouses (Part 2, s 6).   

The above concerns are often addressed by having the parties obtain independent legal advice. Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement substantially unfair after considering these factors:  

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and step-parents (See ''B (C) v B (M)'', [2014] CarswellBC 1212 (BCPC)). It is also important to note that any term purporting to exclude support obligations is likely to be  found invalid on public policy grounds. The Court will seldom uphold an amount lower than the guidelines, even if the parties agree on it, unless there is an appropriate reason to approve it, such as some other arrangement that directly benefits the child. It is important to note  that the Court may refuse an application for a Divorce Order if the Court is not satisfied that appropriate arrangements have been made for the support of the parties’ children. See [[Spousal and Child Support (3:VIII) | Section VIII: Spousal and Child Support]].

The law relating to contracting out of spousal support is complex. Clients should seek professional legal advice before entering into an agreement for spousal support. Under the ''FLA'', spousal support agreements that are filed with a Court registry will be treated as if an order of the Court (''FLA'', s 163), but can be set aside for lack of procedural fairness, such as failure to disclose, where one party has  taken advantage of the other, or where one spouse did not appreciate the consequences of the agreement; they can also be set aside if the  Court finds that the agreement is significantly unfair (see s 164 of the ''FLA'').See [[Spousal and Child Support (3:VIII) | Section VIII: Spousal and Child Support]].

Marriage contracts sometimes incorporate terms that are not enforceable at law. For example, a clause stating, “the husband shall do all the cooking” is a contract for personal services and  is therefore not enforceable. A breach of such an agreement cannot be grounds for divorce.