Legal Studies 1030

Section 1 - the Law and relationships

Lesson 5 - Marriage

Legal Requirements of Marriage:

Each province and territory has its own Marriage Act. Most marriage laws have been passed by the provinces and territories.

There are 5 Essential Requirements of Marriage in Canada:

  1. Mental Capacity: A person who lacks mental capacity because of illness, drugs, or alcohol cannot legally marry. When getting married, both parties must understand the nature of their marriage, the duties and responsibilities it creates. If mental capacity exists at the time of the marriage, but ceases to exist afterwards, the marriage remains valid.
  2. Genuine Consent: Persons getting married must consent to it freely. If either party is forced (e.g. a pregnant girl's parents threatening legal action against the girl's partner if he does not marry her), or if there is a mistake about the marriage ceremony (e.g. marrying the wrong identical twin), the marriage may be declared void.
  3. Minimum Age: Both parties must be old enough in Canada. In Canada, the provinces and territories have legislation requiring a minimum age for marriage, and parental consent for a child under a certain age. In Alberta, the minimum age for marriage is 16 (with parental consent); once a person is 18 in Alberta, they can marry without parental consent.
  4. Close relationships: You cannot marry someone closely related to you. Two people who are too closely related by consanguinity (blood relationship) or adoption cannot legally marry. For example, brothers and sisters cannot marry, but first cousins are free to marry. Information about who you can and cannot marry is available anywhere marriage licences are issued.
  5. Unmarried Status: Both parties must be unmarried at the time of their marriage. In Canada, monogamy is the only accepted form of marriage; that is, a person can be married to only one spouse at a time. If a person enters into a second marriage while still married, that person has committed bigamy, which is illegal, and makes the second marriage illegal and void. Polygamy, being in a relationship or married to two or more persons at the same time, is also illegal.

Formal Requirements of Marriage:

Provincial and territorial governments have jurisdiction over marriage procedures. They are outlined in the provinces' Marriage acts.

The formal requirements (solemnization) of marriage:

  1. Issuing marriage licences or banns: Couples planning to marry must get either a marriage licence, or have banns of marriage (an announcement of an intended marriage) read in the couple's place of worship in some provinces. They can purchase licenses at any city hall, civic centre, or township office.

    Blood tests and medical certificates are not required to marry anywhere in Canada.

  2. Performing the marriage ceremony: Couples can choose either religious or civil ceremonies. Registered clergy member can perform religious ceremonies, and a justice of the peace or marriage commissioner may perform civil ceremonies. The marriage must have at least two people as witnesses.

  3. Establishing age requirements: As you've already learned, in Alberta, the minimum age for marriage is 16 (with parental consent); once a person is 18 in Alberta, they can marry without parental consent. These ages vary from province to province.

  4. Registering the marriage: Every marriage must be registered with a marriage certificate to establish legal proof of the marriage.

Same-Sex Marriage:

Same-sex marriages have now been recognized in Canadian Law since Parliament passed the Civil Marriage Act in 2005. Canada was one of the first countries in the world to legalize same-sex marriage.

What happens when couples decide to end the relationship? We will now examine the laws that relate to leaving a partner.

Common Law Relationships

Unlike a marriage, a divorce is not necessary to end a common law relationship since the couple was never legally married. No matter how long common law couples live together, once they split up, each partner can only ever claim the property they owned individually. Property belongs to the person who paid for it. If the item was a gift, then it belongs to the person to whom it was given.

In common law relationships, each person is responsible for payment of their own debts. In the case of assets, such as a car or home, if the asset is in both of their names, then they are each entitled to half of its value. Either one will need to buy the other out, or the asset will need to be sold, with the proceeds of sale divided equally.

Adult Interdependent Relationships Act:

If you are in an adult interdependent partnership agreement, you have the right to spousal support and various estate rights.

You can end an adult interdependent partnership by written agreement, by living separate and apart for one year, by getting married or by entering into an interdependent partner agreement with another person.

Financial Support:

All provinces and territories now recognize that common law partners have the same right to financial support as married couples. This provision is specifically designed to ensure children's welfare, and includes common law partners in same-sex common law relationships.

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