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Married Spouses and the Law on Marriage (view source)
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Marriage creates a legal relationship between two people, a relationship | Marriage creates a legal relationship between two people, a relationship that gives each spouse legal rights and obligations towards each other 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 | This section discusses the legal requirements of a valid marriage. It looks at void marriages and voidable marriages (there is a difference), and at marriages that are invalid. It also discusses the legal rights resulting from marriage. | ||
==Legal requirements of marriage== | ==Legal requirements of marriage== | ||
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<blockquote><blockquote><tt>(c) as brother and sister by adoption.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) as brother and sister by adoption.</tt></blockquote></blockquote> | ||
In other words, adopted siblings as well as birth siblings are within the prohibited degrees of consanguinity, while, on the other hand, first cousins are free to marry. A marriage | In other words, adopted siblings as well as birth siblings are within the prohibited degrees of consanguinity, while, on the other hand, first cousins are free to marry. A marriage that violates this requirement is void ab initio, that is, the marriage is void as if it had never occurred. | ||
===Age=== | ===Age=== | ||
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 | 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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#the legal capacity of each party to marry is governed by the law of each party's domicile. | #the legal capacity of each party to marry is governed by the law of each party's domicile. | ||
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 10 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''), regardless of the local validity of the marriage ceremony. | 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 10-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''), regardless of the local validity of the marriage ceremony. | ||
Invalid foreign marriages may be considered, in exceptional circumstances, to be valid in Canada. | Invalid foreign marriages may be considered, in exceptional circumstances, to be valid in Canada. A marriage occurring in a place where it is impossible for some reason to comply with the local law governing marriage, because of civil war or religious discrimination, for example, might well be found to be valid in British Columbia. | ||
==Void marriages== | ==Void marriages== | ||
A marriage | A marriage that is void ''ab initio'', void "from the beginning", is void as if it had never been celebrated. In general, an application to the court is not required to dissolve a marriage that is void ''ab initio'' since such marriages are void from the get-go. However, you may have to apply 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. | ||
A marriage will be void ''ab initio'' if: | A marriage will be void ''ab initio'' if: | ||
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==Voidable marriages== | ==Voidable marriages== | ||
A voidable marriage is a marriage | 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 | #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, | #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, | #a male spouse is impotent or a female spouse is sterile going into the marriage, | ||
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#one or both of the spouses agreed to marry as a result of fraud or misrepresentation. | #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 | 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. | ||
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''. | 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''. | ||
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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 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 | 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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==Invalid marriages== | ==Invalid marriages== | ||
An invalid marriage is a marriage | 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, the age of the parties, or errors in the parties' marriage licence. | ||
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 licence won't invalidate a marriage entered into in good faith; s. 11 similarly provides that a marriage conducted by an unauthorized person won't be declared invalid if the marriage is unchallenged. | 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 licence won't invalidate a marriage entered into in good faith; s. 11 similarly provides that a marriage conducted by an unauthorized person won't be declared invalid if the marriage is unchallenged. | ||
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While a couple is married, the federal ''[http://canlii.ca/t/7vf2 Criminal Code]'' requires each spouse to provide the other with the "necessities of life", whatever that means. Apart from that, there are no laws that define the duties involved in marriage. | While a couple is married, the federal ''[http://canlii.ca/t/7vf2 Criminal Code]'' requires each spouse to provide the other with the "necessities of life", whatever that means. Apart from that, there are no laws that define the duties involved in marriage. | ||
When a married couple separates, each of the spouses | When a married couple separates, each of the spouses has certain rights under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Under the ''Divorce Act'', a spouse can ask for: | ||
*a divorce, | *a divorce, | ||
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Under the ''Family Law Act'', a spouse can ask for: | Under the ''Family Law Act'', a spouse can ask for: | ||
*parental responsibilities and parenting time | *parental responsibilities and parenting time for any children, | ||
*child support for any children born of the marriage as well as for any stepchildren, | *child support for any children born of the marriage as well as for any stepchildren, | ||
*spousal support', | *spousal support', | ||
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* <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | * <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | ||
END HIDDEN---> | END HIDDEN---> | ||
== | ==Resources and links== | ||
===Legislation=== | ===Legislation=== | ||