Federal marriage legislation.

• Author: Stevenson, Ronald C.

Ronald C. Stevenson is a retired judge of the Court of Queens Bench of New Brunswick and at one time (1960-1966) was Clerk of the New Brunswick Legislative Assembly. Since retiring he has been an honorary research associate at the University of New Brunswick Law School.

In every society and religion there are rules prohibiting marriages between certain persons within defined familial relationships. Generally the prohibitions apply to persons closely related either by consanguity (blood relatives) or by affinity (relatives by marriage). Since 1867 Parliament has enacted five Public Acts of general application and eleven Private Acts to authorize marriages of couples who sought exemptions from these prohibitions. The Private Acts, passed between 1975 and 1984, prompted a review of the law and resulted in the enactment in 1990 of a statute that redefines the prohibitions. This article outlines the evolution of marriage law and the decline of religious influence on attitudes towards it.

Pre-Confederation law in Canadian common law jurisdictions was derived from the law of England. The classes of couples prohibited, or said to be prohibited, from marrying were those originally set out in a table published by Archbishop Parker in an Admonition in 1563, adopted by the Church of England as Canon 99 in 1603, and annexed to the Book of Common Prayer in 1662.

Prohibited marriages in Quebec were defined in the Civil Code of 1866. The prohibition against a man marrying his deceased wife's sister had been controversial from at least the 17th century. (1)

The first attempt to change the law in post-Confederation Canada began on February 25, 1880 when the Member of Parliament for Jacques Cartier, Mr. Girouard, introduced a bill that would have provided that a marriage between a man and the sister of his deceased wife, or between a woman and the brother of her deceased husband, would be legal and valid. Mr. Girouard was prompted to introduce the bill when he was approached by a lady who had married her deceased sister's husband. Children had been born to both marriages. The father had entailed his substantial estate in favour of his legitimate children. She wanted to know if the children of her marriage were excluded. Under the Civil Code that marriage was absolutely null and void. The bill was debated at some length on second and third readings and in Committee of the Whole. At the second reading stage a hoist motion was defeated 140-19.

On April 21 Senator Ferrier introduced the Bill in the Upper House. On moving second reading he said there was:

a cry for relief from the grievous disability now resting on the people of Canada" and that the Bill would give relief from the disabilities to which they are now subjected by the unscriptural ecclesiastical law which prevails, especially in the code of jurisprudence of the province of Quebec ... The Roman Catholic Church grants a dispensation to any of its people who wishes to marry a sister-in-law but their children are still under the disabilities of the civil law. ... Protestants have the unyielding iron law of affinity, reinforced by the bishops, a law which has no foundation in the Bible.

Senator Dickey moved another hoist of the bill "in order to give time to consider the various petitions to the Senate for and against the bill, and to ascertain the sentiment of the people on the question at the next session of Parliament". On April 28 the bill was killed when the hoist motion was carried by a vote of 33-31.

Two years later Mr. Girouard again introduced a bill in the House of Commons. It would permit a man to marry his deceased wife's sister, but not the converse. Mr. Girouard explained that the language of the bill would repeal laws rather than make the marriages lawful. The changes had been made in the hope of gaining support. The bill was given second reading without debate by a vote of 137-34.

The same year Mr. Strange (York North) made two motions intended to expand the bill to cover marriages with a deceased husband's brother. The first was defeated on division, the second by a vote of 87-49. The House then concurred in minor amendments that had been made in Committee of the Whole and gave the bill third reading.

The next day Senator Ferrier introduced the bill in the Senate. After 3 days of debate a six months hoist proposed by Senator Bellerose was defeated 40-19. On April 13 the bill was considered in Committee of the Whole and was reported without amendment. It received Royal Assent on May 17. (2)

A Father of Confederation and the first federal Minister of Finance, Galt was appointed as Canada's first High Commissioner to London in 1880. In 1848 he had married Elliott Torrance who died shortly after the birth of their only child on May 24, 1850. In 1851 he married Elliott's youngest sister, Amy Gordon Torrance. The wedding took place in New York because of the deceased wife's sister rule in Canada. When Sir Alexander became High Commissioner it appeared that Lady Galt would not be received at court because of the same rule. Galt was prepared to resign rather than be presented without his wife. The Prince of Wales, who in the House of Lords had been supporting efforts to change the law, personally intervened with Queen Victoria and it was arranged that Lady Galt would be presented. It seems, however, that she may not actually have been presented due to a period of mourning for another of the Torrance sisters. (3)

In 1890 Parliament amended the 1882 statute. (4) The amendment added a section repealing all...