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

}}Marriage creates a legal relationship between two people, a relationship that gives each spouse certain rights and obligations on top of whatever promises they may have made during their marriage ceremony. A proper marriage must comply with certain legal requirements, however, and, as a result, not all marriages must be ended by divorce. Some marriages are invalid from the start and can be annulled.

This section talks about the legal requirements of valid marriages. It looks at ''void'' marriages and ''voidable'' marriages — there is a difference! — and at marriages that are ''invalid'', and ends by looking at the legal rights resulting from marriage.

The legal requirements of a valid marriage are governed by the common law, the federal ''[http://canlii.ca/t/7vq2 Marriage (Prohibited Degrees) Act]'', the federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' and the provincial ''[http://canlii.ca/t/846b Marriage Act]''. Part of why there are so many different laws involved in this is that under our Constitution, only the federal government has the authority to pass laws dealing with marriage and divorce, while only the provincial governments have the authority to pass laws dealing with the mechanics of how marriages are performed.

The basic requirements of a valid British Columbia marriage are these:

*'''Relatedness:''' under the ''Marriage (Prohibited Degrees) Act'', the spouses cannot be related ''lineally'', as ''siblings'', or as ''stepsiblings''.

*'''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.

*'''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.

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. With the passage of the '' Civil Marriage Act'' on 20 July 2005, same-sex couples became able to marry throughout Canada.

For a quick summary on getting married in British Columbia, see [[How Do I Get Married in British Columbia?]]. It's located in the section ''Marriage, Separation & Divorce'' in the ''Helpful Guides & Common Questions'' part of this resource.  

In other words, the spouses cannot be related:

 

*as parent and child or as grandparent and child, including by adoption,

*as brothers or sisters, including by adoption, or

 

When you think about it, that's a pretty short list. First cousins, for example, can marry each other, if they don't mind the banjo music. However short the list may be, a marriage that violates this rule is void ''ab initio''; that is, the marriage is void as if it had never occurred.

Both spouses must, in general, be over the ''age of majority'' at the time of their marriage.  

Under the ''[https://canlii.ca/t/531kl Marriage Act],'' youths ''aged 16 to 18'' can marry if they have the consent of all their guardians, or, if they have no guardians, the consent of the Public Guardian and Trustee. However, if a guardian is unreasonably withholding their consent, or can't be found to give their consent, the youth may apply to court for permission to marry.

 

While the marriages of people under the age of 16 are generally forbidden, under section 29 of the provincial ''Marriage Act'', the court may allow such marriages if they are "expedient" and "in the interests of the parties:"

 

<blockquote><tt>(1) Except as provided in subsections (2) and (3), a marriage of any person under 16 years of age must not be solemnized, and a licence must not be issued.</tt></blockquote>

<blockquote><tt>(2) If, on application to the Supreme Court, a marriage is shown to be expedient and in the interests of the parties, the court may, in its discretion, make an order authorizing the solemnization of and the issuing of a licence for the marriage of any person under 16 years of age.</tt></blockquote>

Two rules of the common law govern the validity, in British Columbia, of marriages performed outside the province:

#the formalities of the marriage (the mechanics of the marriage ceremony) are those of the law in the place where the marriage occurred, and

#the legal capacity of each party to marry is governed by the law of each party's "domicile," the place where they usually live.

This means that people who live in British Columbia may be married elsewhere by a hairdresser holding a badger, for example, if the laws of that place allow hairdressers holding badgers to marry people (the ''formalities of marriage''). On the other hand, if two 12-year-olds who live in British Columbia are married outside of Canada by a priest or marriage commissioner, their marriage will be voidable (the ''capacity to marry''), even though the formalities of the foreign marriage are perfectly fine.

Invalid foreign marriages may be considered, in exceptional circumstances, to be valid in Canada. A marriage occurring in a place where it is impossible to comply with the local law governing the formalities of marriage for some reason, perhaps because of civil war or religious discrimination, might well be found to be valid in British Columbia if the parties have the capacity to marry under British Columbia law.

A marriage that is void ''ab initio'' &mdash; void "from the beginning" &mdash; is void as if it had never occurred. 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) at the time of the marriage,

*the spouses were within the prohibited degrees of relatedness,

 

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 as long as they qualify as "spouses" under the provincial ''[[Family Law Act]]''.

A voidable marriage is a marriage that is ''potentially'' void ''ab initio'' but is presumed to be valid until an application is successfully made to the court for an ''annulment'', a declaration that the marriage is in fact void. A marriage may be 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) at the date of the marriage,

*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,

Remember that marriages celebrated in these circumstances are presumed to be valid until the court declares them to be void. Without that declaration, an otherwise voidable marriage remains legal and binding.

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 as long as 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 given their free consent to marry, or was under some kind of pressure to agree 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 parties intending to ever live together as spouses, but for some other purpose, such as a tax benefit or an 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 also found in the law of contracts, may also make a marriage voidable. The argument here is that you were tricked into the marriage in some way. 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 &mdash; the marriage was declared void on the wife's application once the deception was discovered.

 

If misrepresentation is claimed, the deception must usually be as to the identity of one of the spouses or some other fundamental fact about the marriage itself, rather than about something like income or social <span class="noglossary">standing</span>.

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

===Inability to consummate a marriage===

It used to be the <span class="noglossary">case</span>, and many people think this is still true, that a marriage can be annulled if the spouses never have sex. The common law on this subject 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 British Columbia Supreme Court, ''[http://canlii.ca/t/1q1m1 Grewal v Sohal]'', reviewed the law on applications to annul a marriage based on an inability to consummate. The court held that the applicant must prove that:

*the spouses had never consummated the marriage,

*the refusal to consummate the marriage was persistent and not due to a "capricious obstinacy,"

*the applicant has an "invincible aversion" to sex with the other spouse, and

*the aversion was the result of some sort of incapacity.

==Criminal marriages==

In a few circumstances, marriage may wind up getting you charged with an offence under the ''[http://canlii.ca/t/7vf2 Criminal Code]''. Section 290 of the ''Code'' makes it an offence to commit ''bigamy''. This section says that:

 

 

 

 

 

 

 

 

When a married couple separates, however, each of them has certain entitlements under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Under the ''Divorce Act'', a separated spouse can ask for:

*decision-making responsibility for, and parenting time with, the children,

*child support for any children born during the marriage, and for any stepchildren brought into the marriage, and

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

*parental responsibilities for, and parenting time with, the children,

*child support for any children born during the marriage, and for any stepchildren brought into the marriage,

*the division of the family property and any family debt,

*an order protecting persons, and

*an order protecting property.

* ''[https://canlii.ca/t/8q3k Family Law Act]''

* ''[https://canlii.ca/t/551f9 Divorce Act]''

*[https://connect.health.gov.bc.ca/marriage-commissioners Vital Statistics Agency: Search for marriage commissioners]

*[https://www2.gov.bc.ca/gov/content/life-events/marriage Vital Statistics Agency: Marriage registration and certificates information]

 

 

 

{{REVIEWED | reviewer = [[JP Boyd]], 26 February 2020}}