11.1 - Marriage

Significance of Marriage

Marriage has been an institution in society for thousands of years.  Every culture throughout history has practiced some variation of marriage.  Marriage is a highly romantic and personal event, yet it is also an extremely important legal event.  This section will examine marriage from a legal (civil law) perspective.

Essential Requirements of Marriage

In order for a marriage to be legally valid, it must include each of the following six essential requirements of marriage:  mental capacity, valid consent, minimum age or parental consent, absence of a prohibited relationship, termination of prior marriages (if any), and sexual capacity.  If any of these requirements are not met and the couple marries, then the marriage may be declared void ab initio (declaration that marriage is null and void from the start).  Each of these six elements is discussed below.

The first essential requirement of marriage is mental capacity.  Mental capacity is one’s ability to understand the nature of one’s actions and to voluntarily enter into a contract.  Mental illness, intoxication, mental disability, etc. are all examples of situations where mental capacity may not be present during a marriage ceremony.  Each spouse must be fully mentally aware at the time of the marriage.

The second requirement of marriage is freedom of consent.  This means that a person must give their consent to marry, and in so doing, agree to enter a marriage willingly.  This requirement would not be met if a person felt that they were being forced into it through fear (under duress), or that there was some error or confusion about the identity of the person they were about to marry, or confusion about the purpose of the ceremony (mistake).  Marriage requirement number three establishes the age of consent.  In B.C., the minimum age to be legally married without parents’ consent is 19; whereas, the minimum age to be legally married with parents’ consent is 16.

Next, the fourth essential requirement of marriage is the absence of a prohibited relationship.  This means that no one can marry someone that they are too closely related to, either by blood or marriage.  Consanguinity is the relationship by blood.  People may not legally marry someone that they are too closely related to by blood, such as a brother or sister.  It is not legal to marry siblings, half-siblings, or adopted siblings; but it is legal to marry cousins.  Also, people may not legally marry someone that they are too closely related to by marriage (affinity).  Marrying a step-sibling that a person has grown up with is an example of affinity that would result in a void marriage.  However, a marriage between step-siblings who did not grow up together (ie. they became step-siblings as late teens or adults) is legally valid.

The fifth legal requirement for marriage is the termination of prior marriages.  That is, if someone was previously married, then that marriage must be legally ended before that person could marry again.  In Canada, people may be legally married to only one person at a time (monogamy).  Polygamy is being married to more than one person at a time, and it is not legal in Canada.  If a person has been previously married, the three ways that a marriage is legally ended is by death, divorce, or annulment.  A divorce is the legal ending of a marriage; while an annulment is the court declaration that a legal marriage never existed.  The sixth, and final essential requirement for marriage is sexual capacity.  Sexual capacity refers to the ability to perform sexually, and therein consummate a marriage (legally validating a marriage through sexual intercourse between spouses).  This is a component of the legality of marriage because of the significance of sexual intimacy to a marriage relationship.

Getting Married in B.C.

If the above essential requirements of marriage have been fulfilled, and the couple to be married reside in B.C., then several formal requirements must be met in order to be legally married.  The first is for the couple to obtain and sign a marriage license.  A marriage license is a legal document that authorizes the people to be married.  The other main requirement is to hold a marriage ceremony (either civil or religious).

The marriage ceremony must include several  specific requirements.  One such requirement is that there must be two witnesses aged 18+ present during the ceremony.  Also, the ceremony must be performed by a person authorized to perform marriage ceremonies, such as a religious leader, wedding commissioner, or justice of the peace.  Each party in the marriage must also declare openly that they’re not aware of any marriage impediments, and that they agree to take the other as their “lawfully wedded” husband/wife/partner.  Finally, the wedding official must declare the couple to be “husband and wife”, “partners for life”, or “married”, at the end of the ceremony.  At this point, after having signed the marriage license and completed the ceremony, the couple is legally married.

Marriages Following Indigenous Customs

All laws in Canada related to marriage, divorce, and family law apply to Indigenous people, just as to non-Indigenous people.  However, courts in Canada do recognize the legality of custom marriages.  Custom marriages are wedding ceremonies between Indigenous spouses that follow traditional practices.  Custom marriages are considered legal marriages in Canada.

Family Structure Today

The historical family structure of a father, mother, and two or three children, all living together and fulfilling traditional roles, is changing.  Families today have many different looks and structures such as:  blended families, same-gender families, single-parent families, extended families, etc.

Many couples these days choose not to get legally married, but instead live together in a common-law relationship.  A common-law relationship is an intimate relationship between two people who are not legally married.  In B.C., the Family Law Act describes a “spouse” as someone who is married to another person; but it also includes people who have lived with someone in a “marriage-like relationship” for at least two continuous years.  This means that a couple living in a common-law relationship for 2+ years have all of the same legal rights and responsibilities as a married couple.

Sometimes, couples entering into either marriage or cohabitation (legal description of two people involved in a common-law relationship) will prepare a domestic contract.  This is a legal agreement that defines the rights and obligations of the married or cohabitating partners.  The domestic contract for a couple about to be married is called a marriage contract, and it deals with specific aspects of the marriage, including the division of property in the event of a divorce, separation, or death.  Marriage contracts are often referred to as prenuptial agreements.  On the other hand, a cohabitation agreement is a domestic contract that sets out the rights and obligations of both parties in a common-law relationship.  Domestic contracts are not a requirement for marriage or cohabitation, but they are becoming more and more commonplace.

Ending a Marriage

If a marriage or common-law relationship ends, there are often complications related to which partner has what rights, and what obligations.  If a domestic contract was not in place, many couples may prepare a separation agreement when they first split up.  A separation agreement is a domestic contract that sets out the terms and conditions of the separation, dealing with issues such as child custody, support payments, and division of property.

Marriage and common-law relationships may end for a variety of reasons.  From a legal perspective, the only grounds for divorce is marriage breakdown, and it is proven through any of the following:  living separate and apart for 1+ year, one spouse committed adultery, or one spouse subjected the other to physical or mental cruelty (spousal abuse).  When a couple lives separate and apart, it means that they are living their lives without reliance and support from the other.  Usually, split-up couples live in different homes, but it is possible to share a home and still live separate and apart.  If one partner commits adultery or is physically or mentally abusive (ie.  emotional, psychological, financial, sexual abuse), then the other partner may begin divorce proceedings immediately, and they do not have to wait one year.

If a married couple begins to prepare for divorce, the first real step is the preparation of an application for divorce.  An application for divorce is a document providing reason for the divorce and arrangements for support payments and child custody.  The person that is starting the process of divorce, and submitting the application for divorce is called the applicant, while the person being sued for divorce is called the respondent.  Quite often, couples mutually agree to a divorce, and so the applicant and respondent roles are not as significant.  If only one partner wants a divorce, it will still happen.  It is not necessary for both parties to want the divorce for it to be done.  Once the couple has completed all of the legal requirements for divorce, they receive a certificate of divorce, thereby confirming the termination of the marriage.

Summary

The cultural institutions of marriage or common-law relationships are highly personal and romantic, but they are also important legal events.  As a result, there are several specific legal requirements to becoming married or legally cohabitating; and also to become legally unmarried (divorced) or legally split up from a common-law partner.  Specific elements of divorce and separation, such as asset splits, child support and custody, and spousal support will be the focus of section 11.2.