The legal requirements of a valid, legal marriage are governed by the common law, the federal Marriage (Prohibited Degrees) Act, the federal Civil Marriage Act and the provincial Marriage Act. The difference between the first two pieces of legislation and the last 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 formalities of how marriages are performed, or solemnized.

The requirements of a valid British Columbia marriage are these:

• Relatedness: the spouses cannot be within the prohibited degrees of consanguinity set out in the Marriage (Prohibited Degrees) Act.
• Marital Status: both spouses must be unmarried at the time of their marriage.
• Mental Capacity: both spouses must have the mental capacity to understand the nature of the ceremony and the rights and responsibilities marriage involves, at the time of the ceremony.
• Age: both spouses must be of the age of majority or older.
• Solemnization: the marriage must also be performed by a person licenced 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 validly marry in British Columbia since 8 July 2003. On 20 July 2005, with the passage of the Civil Marriage Act, same-sex couples became able to marry throughout Canada. More information about same-sex marriage can be found in the Same-Sex Couples section of this website.

Relatedness

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

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 which violates this requirement is void ab initio, that is, the mariage is void as if it had never occured.

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 providing that the marriage was necessary and in the best interests of both parties.

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 legal ages for marriage, might still be considered to be valid. Since marriages between people this young are prohibited in Canada, this rule will only apply to preserve the marriages of young couples wed outside of Canada.

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 are those of the law in the place where the marriage occured; and,
2. 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, for example, if the laws of that place allow hairdressers to marry people (the formalities of marriage). On the other hand, if two 10 years 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).

Note that invalid foreign marriages may be considered, in exceptional circumstances, to be valid. For example, a marriage occuring in a place where is impossible for some reason to comply with the local law governing marriage, such as war, might well be found to be valid in British Columbia.

Back to the top of this chapter.

A marriage which is void ab initio is extinguished, so to speak, as if the marriage never happened. In general, an application to court is not required to disolve a marriage which is void ab initio, however you may well have to make such an application if someone is making a claim against you based on the fact that you are supposed to be married.

A marriage may be found to be void ab initio if one of the following conditions of marriage was violated:

1. one or both spouses was seven years old or younger;
2. the spouses were within the prohibited degree of relatedness;
3. one or both of the spouses did not have the mental capacity to marry; or,
4. one or both of the spouses were already married at the time of the 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, for example if the parties have had children or qualify as a common-law couple under the Family Relations Act. See the section Unmarried Couples for more information.

Back to the top of this chapter.

A voidable marriage is a marriage which is invalid but which remains valid until an application is made to the court for a declaration to that the marriage is void. A marriage may be invalid if:

1. the spouses were over seven years of age, but a female spouse was under the age of twelve or a male spouse was under the age of fourteen;
2. one or both of the spouses did not consent to the marriage or were under duress when they married;
3. a male spouse is impotent or a female spouse is sterile going into the marriage;
4. the marriage was a sham; or,
5. one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You must make an application to court for a declaration that the marriage is void. Without that declaration, the marriage will remain legal and binding. Under certain circumstances, however, the court may refuse to cancel a marriage which is otherwise voidable.

Even where the court agrees to the application and voids the marriage, the parties may still have certain legal rights and obligations towards each other, for example if the parties have had children or qualify as a common-law couple under the Family Relations Act. See the section Unmarried Couples for more information.

Consent and Duress

As with any contract, which is how marriage was traditionally described, if either party has not properly given his or her consent or was under 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 are those conducted 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.

Misrepresentation and Fraud

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, 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.

Failing to Consumate the Marriage

It used to be the case, and many people think this is still true, that if a marriage is not consumated (if the spouses never had sex) then 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 consumation will defeat either spouse's ability to claim impotence as a ground of voidability.

A recent case, Grewal v. Sohal, reviewed the law on applications to annul a marriage based on non-consumation. The court held that the applicant must prove that:

1. there had been no consumation of the marriage;
2. the refusal to consumate the marriage was persistent and not due to capricious obstinacy;
3. the applicant has an invincible aversion to sex with the other spouse;
4. the aversion was the result of some sort of incapacity; and,
5. the incapacity may be based on normal, predictable reactions.

Back to the top of this chapter.

An invalid marriage is a marriage which 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.

Back to the top of this chapter.

Section Menu

The Legal System · Alternatives to Court · Children · Child Support · Spousal Support
Family Assets · Family Agreements · Same-Sex Couples · Unmarried Couples
Other Family Law Issues

Resources Menu

Site Map & Index · Legislation · Resources & Links · Definitions · Feedback
How do I ? · About the Author · Reviews & Write Ups · Help!

Please ensure you take the time to read these important legal notices.

Terms of Use · Copyright Notice · Disclaimer · Privacy & Confidentiality · Press Kit

Copyright © 2001-2009 John-Paul Boyd. All rights reserved.