Difference between revisions of "Married Spouses and the Law on 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''.

A voidable marriage is a marriage which 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:

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 if 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 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 are marriages that are entered into without the intention of the spouses to live as husband and wife, but rather for some other purpose, such as tax benefits or 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 found in the law of contracts, may also make a marriage voidable. If misrepresentation is claimed, the deception must usually be as to identity or some other material fact about the marriage itself, rather than about something like income or social standing. 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.

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

It used to be the case, and many people think this is still true, that if the spouses never had sex the marriage was voidable. The common law 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.