Essential Requirements of Marriage
Formal requirements of marriage are just that – formalities. These are the
requirements to do such things as get a licence, be married by someone qualified to
perform a marriage ceremony, and make sure the event is witnessed and
registered.
Essential requirements of marriage are the legal requirements that must exist
for a marriage to be valid. Because marriage is a contract, many of the same
elements required for a valid contract are required for a valid marriage.
Capacity
To have the capacity to marry, you must
have the mental and legal ability to marry.
No one who lacks mental capacity by
reason of illness, drugs or alcohol can
legally marry. At the time of the marriage,
both parties must have the ability to
understand not only the nature of the
ceremony, but also the duties and
responsibilities created by the marriage. If
mental capacity exists at the time of the
marriage, but ceases to exist afterward,
the marriage remains valid.
Minimum Age
A valid marriage also requires the parties
to be old enough to marry. In Canada, the
federal government has not established
any minimum age for marriage but has
adopted the minimum ages under English
common law: 14 years for males, 12 years
for females. However, all the provinces
and territories have legislation requiring a
higher minimum age. In Ontario, the
minimum age is 18 years, or 16 with
parental consent.
Close Relationships
A marriage between two people who are
too closely related either by consanguinity
(blood), by adoption, or by affinity
(marriage) is not valid. In 1990, Canadian
Parliament enacted the Marriage
(Prohibited Degrees) Act, which came into
force in 1991. It lists persons who may not
marry because they are to closely related
by blood or adoption.
Genuine Consent
Since marriage is a contract, the parties
must consent to it freely. If either party is
forced or tricked into getting married, the
marriage may be declared void. Whether
the marriage ceremony is religious or civil,
performed before a member of the clergy
or a judge, the bride and groom and all
those present will be asked if any reason
exists to prevent the marriage. Usually
nothing is said (except in the movies). If
either spouse then says after the
ceremony that consent was not freely
given, the evidence must be very strong
for the marriage to be annulled.
“Of course I do!”
Lack of consent may result from either a mistake or duress.
A mistake in marriage law refers to (1) mistaken identity of one of the parties, and (2) mistake as
to the nature of the ceremony. Although mistaken identity is rare, it might occur if the face of one
party were covered for some reason, or when one identical twin takes the place of the other at the
ceremony. Mistake as to the nature of the ceremony might occur when one of the parties does not
speak the language used in the ceremony and genuinely believes that the ceremony is something
other than marriage, such as an engagement ceremony. Being mistaken or deceived concerning other
matters involving the marriage partner, such as wealth, religion, age, health, or personal habits, is
not a valid reason for declaring a marriage void.
Duress occurs when one person marries another out of fear for his or her
life, health, or freedom. It does not require the use of physical force. The
most common example of duress related to marriage occurs when a pregnant
girl’s parents threaten to take legal action against the girl’s partner if he
does not marry their daughter. In any situation involving duress, the courts
will annul the marriage is asked to do so by the party forced into the
marriage.
No Prior Marriages
In Canadian law, monogamy is
the only accepted form of
marriage; that is, a person can be
married to only one spouse at a
time. It is illegal for a person to
enter into a second marriage while
still married. A person who does
so commits the crime of bigamy,
which makes the second marriage
illegal and void.
A person
convicted of bigamy can be
sentenced to a maximum
punishment of five years, although
very few charges have been laid
in recent years. Before a person
can remarry legally, he or she
must present a document showing
that the earlier marriage ended by
annulment, divorce, or the death
of a spouse.
Sexual Capacity
A valid marriage also requires consummation of
the marriage. The partners must be physically able
to have sexual intercourse to consummate the
marriage. If either party lacks sexual capacity – for
example, if the man or woman is impotent – the
marriage may be dissolved. A marriage is
consummated on the first occasion when the
spouses engage in post-marital sexual intercourse.
Once consummated, always consummated.
Impotence may arise from a physical problem or a
psychological fear of sexual intercourse. It is the
inability of one or both spouses to engage in sexual
intercourse with each other. This lack of capacity
must exist at the time of the marriage. If it
develops afterward, it does not affect the validity of
the marriage. Impotence should not be confused
with sterility, the inability to have children. A
sterile person can consummate the marriage.
MARRIAGE VALIDITY EXERCISE
Using your knowledge of the essential and formal requirements of marriage in Canada, indicate which
of the following marriages would be valid and which would be void or voidable.
Explain your reasoning.
1. Toni and Barry plan to be married in an evening ceremony. On the afternoon of the wedding, friends
take Barry out to a bar to celebrate. Barry consumes a great deal of alcohol and arrives at the
ceremony intoxicated, i.e., falling down drunk.
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2. Nandana is the youngest of six children. All of her siblings agreed to arranged marriages, but Nandana wants
to marry someone of her own choice. Her parents have been pressuring her to marry a man whose family has
paid them a large dowry. Nandana finally gives in and reluctantly goes through with the wedding ceremony.
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3. Rick and Simone began dating almost two years ago. Rick is now 19 and Simone is 17. Simone becomes
pregnant, and the two decide to elope. Simone lacks parental consent but asks a friend to sign her mother’s
name on the marriage licence application.
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4. Sandi has been secretly dating Calvin since the two were in grade 10. They are now both 20 years old and
have decided to get married. Sandi’s parents object because they do not approve of Calvin. They insist that
the marriage is invalid.
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5. Maude and Travis are married in a religious ceremony in June and in a civil ceremony in July. Travis is
diagnosed with Alzheimer’s disease in February of the next year.
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Debora v. Debora, [1999] Ont. C.A. C28709
In 1987, Miriam and David Debora were married in a religious ceremony.
At the time, David was receiving a widower’s pension. He suggested to
Miriam that they not get a marriage licence or register their marriage with
the government because to do so would terminate his pension. Miriam
agreed. By 1994, David had acquired substantial assets, so they decided
to get married in a civil ceremony. This time they obtained a licence.
A few years later David and Miriam separated, and a disagreement ensued over what marriage
date should be used for the division of property. David believed the marriage date should be
1994, and Miriam felt it should be 1987. Miriam knew that the 1987 ceremony had not been
conducted in accordance with the Ontario Marriage Act, but she claimed that David had
assured her that the marriage would be considered legal. David denied making this statement.
Miriam took the case to court, but her action was dismissed. She appealed the decision to the
Court of Appeal. The Court upheld the lower court’s ruling that under the Ontario Marriage Act,
Miriam was not entitled to the same rights as a “spouse” until the marriage of 1994.
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1. Explain why neither court regarded Miriam as a “spouse” from 1987 to 1994.
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2. As Miriam’s lawyer, what arguments would you use to show that the couple had been
“married” since 1987? Why was determining the marriage date so important?
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3. How could this problem have been avoided?
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Marriage Breakdown: The Separate and Apart Rule
The federal D ivorce A ct
provides the legal framework
for divorce across Canada. A
divorce can only be granted by
court order. This court order for
divorce ends the spousal relationship and leaves the
spouses free to remarry. At the time a divorce is
granted, the court may also deal with other issues such
as custody, access, maintenance and property
division.
There is only one ground on which to base a claim for
divorce: marriage breakdown. One way to establish
that a marriage has broken down is to show that the
spouses have lived separate and apart for at least one
year. So, just what does separate and apart mean?
Generally speaking, the courts have held that
"separate and apart" means a physical separation,
combined with an intent to end the marriage. This
intent does not need to be shared by both parties. In
some situations, spouses may even be considered to
have been living separate and apart while continuing
to live under the same roof. The courts; however, have
held that where the spouses are living under one roof,
the evidence that they are actually living separate and
apart must be clear and convincing.
For example, economic circumstances sometimes
prevent spouses from taking up two residences, but
they nonetheless lead separate and individual lives.
There may be virtually no contact between them, and
marital relations may stop. They may eat all their meals
apart from the other spouse and lead separate social
lives. When a spouse claims that he or she has lived
separate and apart from his/her spouse while
continuing to live under the same roof the individual,
facts will determine whether the legal requirement for
living separate and apart has been met.
Either spouse can begin the divorce process,
regardless of who left the marriage or why. A spouse
who applies for a divorce does not need to prove that
the other spouse was at fault. It is possible to simply
plead that the marriage has broken down, as
established by the fact that the parties are living
separate and apart. While a divorce will not be finalized
before the parties have lived separate and apart for a
period of at least one year, the process can begin as
soon as the spouses begin to live separate and apart.
A brief attempt at reconciliation during the year will not
affect the required separation period if the
reconciliation is unsuccessful. Spouses will still be
considered to have been separated for one year if they
did not live together for more than ninety days following
their initial separation.
The spouse who is seeking the divorce must have a
"petition" for divorce issued by the local registrar at the
court house. A lawyer generally prepares the petition
and has it issued for the spouse. A petition is a legal
document that outlines the grounds for divorce. The
petition must be served on the other spouse. If the
other spouse does not contest or fight the divorce, the
court can simply grant the divorce if the grounds for
divorce are established.
If the other spouse wants to contest or fight the divorce
they must file a reply to the petition at the court house.
This is usually done through a lawyer. A spouse may
agree to the divorce, but may disagree about other
issues raised in the petition, such as custody, access
and maintenance.
Divorce proceedings can be very complicated if the
divorce is contested, or if there are custody or
maintenance issues to be settled. Spouses may wish
to attempt to mediate these m atters or consult with a
lawyer.
If the court is satisfied that there are grounds for
divorce, it will issue a judgement for divorce. A divorce
may be granted together with an order dealing with
custody, access, maintenance and family property. The
divorce is finalized 31 days after the judgement is
issued. The purpose of the waiting period is to allow for
an appeal. After the 31 days have passed and appeal
has not been started, the divorce is final and the
spouses are free to remarry.
Marriage breakdown may also be established by
proving adultery or cruelty. When either adultery or
cruelty is established the law does not require a
one-year separation before finalizing the divorce when
the non-offending spouse who applies for the divorce.
The spouse who has committed the adultery, or treated
the other spouse with cruelty, cannot use his or her
own adultery or cruelty to get around the one-year
waiting period. Unless there is a good reason for the
non-offending spouse to plead adultery or cruelty, it is
usually faster and simpler to simply rely on a
separation of one year.
(Source: Public Legal Education Association of Saskatchewan)
In PETTKUS V. BECKER [1980] 19 R.F.L. (2d) 165 (S.C.C.), a 19-year old common law
relationship had ended very badly. During the relationship, Lothar Pettkus had developed
a thriving beehive operation and when the relationship ended, Rosa Becker claimed half
of it. Becker's salary had gone towards numerous "family" expenses such as meeting
ongoing expenses while Pettkus was able to save his income, which went towards the
purchase of the bee-hiving farm. Ms Becker's first argument was that an implied trust had
developed in the farm and in which resulted her half-interest. If this was not the case, then
she argued that a constructive trust of "unjust enrichment" had developed. These trusts are
court-imposed and are designed to cure injustices where three conditions are met: where
(1) someone has benefited (2) at the expense of another and (3) the enrichment is "unjust"
or without legal justification.
Decision: Ms Becker was given a 50% share of the farm and beehive operation. Justice
Dickson writing for the majority and in a brilliant display of legalese, said: "where one
person, in a relationship tantamount to spousal, prejudices herself in the reasonable
expectation of receiving an interest in property, and the other person in the relationship
freely accepts benefits conferred by the first person in circumstances where he knows or
ought to have known of that reasonable expectation, it would be unjust to allow the
recipient of the benefit to retain it." Since this decision, most Canadian provinces have
passed legislation which recognizes common law relationships and establishes support
standards for them.
about this case . . .
Do you think common-law relationships should be treated the same way
as marital relationships? For all purposes? Why or why not? Explain your answer
thoroughly.
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Investigate the outcome of this case and find out what happened in the end. With
the benefit of hindsight, write a letter of advice to Rosa Becker before she entered
into her relationship with Lothar Pettkus. What would you have advised her to do?
Your response should be handed in in an appropriate format.