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.

Legal requirements of marriage

The legal requirements of a valid marriage are governed by the common law, the federal Marriage (Prohibited Degrees) Act, the federal Civil Marriage Act and the provincial 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.

Relatedness

Section 2(2) of the federal Marriage (Prohibited Degrees) Act states that:

No person shall marry another person if they are related

(a) lineally by consanguinity or adoption;

(b) as brother and sister by consanguinity, whether by the whole blood or by the half-blood; or

(c) as brother and sister by adoption.

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
• as half-brothers or half-sisters.

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.

Age

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

Under the 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:"

(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.

(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.

Foreign marriages

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

1. the formalities of the marriage (the mechanics of the marriage ceremony) are those of the law in the place where the marriage occurred, and
2. 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.

Void marriages

A marriage that is void ab initio — void "from the beginning" — 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,
• 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.

In general, an application to the court is not required to dissolve a marriage that is void ab initio since void marriages are void from the get-go. However, you may want to apply to court for a declaration that your marriage is void if someone is making a claim against you based on the fact that you are supposed to be married.

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.

Voidable marriages

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,
• 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.

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.

Consent and duress

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

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.

Misrepresentation and fraud

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 — 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 standing.

Capacity to reproduce

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 case, 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, 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.

Invalid marriages

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; section 11 similarly provides that a marriage conducted by an unauthorized person won't be declared invalid if the marriage is unchallenged.

Criminal marriages

In a few circumstances, marriage may wind up getting you charged with an offence under the Criminal Code. Section 290 of the Code makes it an offence to commit bigamy. This section says that:

(1) Every one commits bigamy who

(a) in Canada,

(i) being married, goes through a form of marriage with another person,

(ii) knowing that another person is married, goes through a form of marriage with that person, or

(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or

(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.

That's a long way of saying that you can't marry someone else if you're already married, and that you can't try to get around this restriction by marrying two people at the same time.

Section 293 of the Code makes it an offence to commit polygamy. If bigamy means "two marriages", polygamy must mean more than two marriages, but what this section is really trying to get at is the "plural marriage" idea promoted by fundamentalist adherents of the Church of Jesus Christ of Latter-day Saints, as seen on TLC's long-running reality show Sister Wives. From a technical perspective, bigamy and polygamy are pretty hard to tell apart. Either way, you're marrying more than one other person.

Believe it or not, the Criminal Code includes a number of other offences related to marriage, including:

• procuring a feigned marriage, section 292,
• pretending to solemnize a marriage, section 294, and
• solemnizing a marriage contrary to law, section 295.

Now, to be clear, polyamory is not a criminal offence. Polyamory, which is discussed in the section Polyamorous Relationships later in this chapter, is about consensual relationships between more than two adults, not marriages between more than two adults.

The rights and responsibilities of married spouses

While a couple is married, section 215(1) of the federal Criminal Code requires each spouse to provide the other with the "necessaries of life," whatever that might exactly mean. Apart from this one provision of the criminal law, there is no legislation that defines the duties spouses owe to each other during their marriage. (Under the old common law, marriage actually involved a number of specific obligations, including the duty of married spouses to live together and to provide each other with companionship and the other benefits of married life, as well as a number of other obligations that depended on the spouse's gender.)

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:

• a divorce, to legally end the marriage,
• 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
• spousal support.

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,
• spousal support,
• the division of the family property and any family debt,
• an order protecting persons, and
• an order protecting property.

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.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Civil Marriage Act
• Marriage (Prohibited Degrees) Act
• Marriage Act
• Criminal Code

Links

• Vital Statistics Agency: Search for marriage commissioners
• Vital Statistics Agency: Marriage registration and certificates information
• Getting Married in British Columbia from Dial-a-Law by the People's Law School
• Requirements for Divorce and Annulment from Dial-a-Law by the People's Law School
• Marriages, divorces, and annulments inside and outside Canada from Legal Aid BC

Resources

• "Endings Relationships" video from JP Boyd

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 26 February 2023.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.