I. Absence of Consent

Author:Julien D. Payne - Marilyn A. Payne

Page 25

As stated previously, marriage is "a voluntary union for life." It is not a status that can be imposed on a person without his or her consent. In principle, the absence of consent should render a marriage null and void, regardless of the factor that precluded consent. Judicial decisions have differed, however, on whether factors such as insanity, duress, or mistake render a marriage void or only voidable at the option of the non-disabled or innocent party.51

1) Unsoundness of Mind; Alcohol and Drug Intoxication

Freedom of consent to marry may be negated by unsoundness of mind or the effects of excessive alcohol or drug consumption.52The degree of impairment must be such that the afflicted person was incapable of understanding the ceremony of marriage and the duties and responsibilities that flow from marriage.53The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to

Page 26

marry as long as the person is capable of managing his or her own affairs.54

The affliction must have existed at the time when the marriage was solemnized.55The burden of proof falls on the person who seeks to impugn the marriage.56

2) Duress

Where improper pressure undermines a person’s ability to consent, the marriage is voidable at the option of the coerced party.57Duress implies the exertion of pressure that induces fear but it does not require the use of physical force. Although fear is a necessary ingredient, it is unnecessary for the person coerced to feel a threat to his or her personal life, limb, or liberty. It is sufficient if fear for some other person is induced.58Coercion sufficient to undermine the consent to marry may arise from external sources, as, for example, where a person marries for the purpose of escaping political oppression in his or her homeland.59In RH v RT,60Maisonville J, of the British Columbia Supreme Court, accepted the subjective test set out in Scott v Sebright61whereby proof is required that a "party is actually in a state of mental incompetence to resist pressure improperly brought to bear."62She observed that "the duress must be of such a nature that the free will to consent to the marriage is overborne"63and identified the following considerations as pertinent to the requisite judicial inquiry:

· the party’s emotional state at the time of the marriage ceremony,

· the party’s vulnerability,

· the time between the alleged coercive conduct and the marriage ceremony,

· whether the marriage was consummated,

· the residence of the parties during the marriage, and

· the amount of time until the start of annulment proceedings.64

Page 27

She then added that "[t]he most important consideration for the court when considering an annulment on the basis of duress is the parties’ emotional state at the time of the marriage ceremony. If the parties are mentally competent to give consent even if they may be reluctant and feel pressured, this is not sufficient ground to grant an annulment on the basis of duress. The emotional state must completely overbear the will to consent, however reluctant or hesitant the party may be."65

3) Fraud

Misrepresentations as to the character or personality traits of a spouse do not constitute fraud in proceedings to annul a marriage.66Fraudulent misrepresentations that induce a person to marry will not undermine consent except where the misrepresentations lead to an operative mistake.67As a Saskatchewan judge has observed, "No degree of deception can avail to set aside a contract of marriage duly celebrated by consenting parties with the capacity to enter into the marriage."68

4) Mistake

There are only two kinds of mistake that can render a marriage void for lack of consent. They are (1) mistake as to the identity of the person with whom the marriage is entered into, and (2) mistake as to the nature of the ceremony.69A mistake of identity presupposes that A intended to marry B but in fact married C.70Mistakes as to the attributes of a person with whom marriage is contracted, for example, his or her age, health, virginity, or wealth, do not amount to mistaken identity and do not negate the consent to marry. Thus, a woman’s wilful concealment of her pregnancy by another man at the time

Page 28

of the marriage has been found insufficient to undermine her husband’s consent to the marriage.71Consent will be negated, however, where a person was unaware that the ceremony to which he or she was a party was one of marriage.72In determining whether a person was acting under a misapprehension with respect to the nature of the ceremony, credibility becomes a critical factor. In an Ontario case,73the trial judge took account of the following circumstances: the parties had recently arrived from Greece where marriage ceremonies take a different form; the parties never cohabited or consummated the marriage; and the petitioner only spoke Greek, whereas the language of the marriage ceremony was English. Custom, language, cohabitation, and consummation are, therefore, important considerations in determining credibility. Where the nature of the ceremony is understood, however, a mistake as to the consequences of the marriage is not sufficient to negate the consent to marry. A mistaken belief that the marriage is polygamous,74or that the other spouse would be free to leave her Russian homeland,75or that a religious ceremony is required in addition to the civil...

To continue reading