CHAPTER 21 Marriage

• Date: 07 April 2025

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CHA PTER 21

MARRIAGE

A. CONSTITUTION AL FR AMEWOR K

The Canadian Constitution divides legislative power over marriage

between the federal and provincial governments. Section 91(26) of the

Constitution Act, 1867 grants to the Parliament of Canada authority over

“Marriage and Divorce,” section 92(13) grants the provinces general

legislative authority over “Property and Civil Rights in the Province”

and section 92(12) confers on the provinces jurisdiction over “The Sol-

emnization of Marriage in the Province.”1 In Hill v Hill, Hyndman JA

determined that as a result of the division of powers, the federal govern-

ment had “the exclusive right to legislate as to who [should] or [should]

not be capable of marrying” while the provincial legislatures were free

to decide “what the individual rights of the parties [should] be within

the Province after marriage.”2 Equally, the Privy Council made it clear

in Re The Marriage Law of Canada that the Canadian Parliament did

not have exclusive jurisdiction over all questions relating to the validity

of marriages.3 Section 92(12) enabled provincial legislatures “to enact

conditions as to solemnization which [might] aect the validity of the

contract [of marriage].”4 In Kerr v Kerr, the Supreme Court of Canada

held that solemnization of marriage within section 92(12) “include[d]

not only the essential ceremony by which the marriage [was] eected,

1 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

2 [1929] 2 DLR 735 at 741 (Alta SCAD).

3 (1912), 7 DLR 629 (PC).

4 Ibid at 636.

CONFLICT OF LAWS

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but also parental consent where such consent [was] required by law.”5

Thus, provincial legislatures were competent “to make the preliminaries,

leading up to the marriage ceremony, conditions precedent to the sol-

emnization of the marriage” and “to declare that in the event of these

conditions precedent not being complied with no valid marriage ha[d]

taken place.”6 The division of legislative power over marriage means that

both international and interprovincial conf‌lict of laws issues can arise

in this context.

Both levels of government have enacted legislation in their respective

areas of authority. Canada has enacted the Civil Marriage Act7 and the

Marriage (Prohibited Degrees) Act.8 Each province has enacted legislation

concerning the formal process by which people marry, such as Ontario’s

Marriage Act.9

This chapter considers several cross-border issues related to mar-

riage. One is whether people in Canada seeking to marry can legally

do so. Another is whether a prior marriage will be treated as valid. This

can be a stand-alone issue for determination, as a matter of status, or a

preliminary issue to questions about divorce, succession or immigration.

The primary issue is one of choice of law rather than either jurisdiction

or the recognition and enforcement of foreign judgments.

B. FORMAL VALIDITY

1) General Rule

In Brook v Brook, for the purposes of the conf‌lict of laws, the House of

Lords drew the distinction between the formal validity of a marriage

and its essential validity, a similar distinction to that drawn in the Can-

adian Constitution.10 It made it clear that the forms of entering into

the contract of marriage were regulated by the law of the place where

the marriage was celebrated.11 In Berthiaume v Dastous the parties, who

were both domiciled in Quebec, went through a ceremony of marriage

in France in accordance with the form of the Roman Catholic Church.12

5 [1934] 2 DLR 369 at 375 (SCC), Lamont J. See also Alberta (Attorney-General) v

Underwood, [1934] SCR 635.

6 Kerr v Kerr, above note 5.

7 SC 2005, c 33.

8 SC 1990, c 46.

9 RSO 1990, c M.3.

10 (1861), 9 HL Cas 193 [Brook]. See also Naf‌ie v Badawy, 2015 ABCA 36 at para 42

[Naf‌ie].

11 See also Kudom v Kudom-Innocent, 2018 ONSC 5104 at paras 46–47.

12 [1930] AC 79 (PC).