F. Formal and Essential Validity

Author:Julien D. Payne - Marilyn A. Payne

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1) Validity of Marriage; Applicable Laws

The formal validity of marriage is determined by the application of the lex loci celebrationis, that is, the law of the place where the marriage was contracted.29

A party who asserts that a marriage is void because of lack of compliance with the requirements of the law of the country in which it was celebrated has the burden of proving the foreign law by means of an expert witness.30

Absent such proof, the foreign law will be presumed to be the same as the law of the forum wherein the marriage is impugned.31Matters pertaining to the essential validity of a marriage, which include the capacity to marry and consent to marriage, are governed by the law of the domicile of the parties at the time of their marriage, or possibly the law of their intended matrimonial domicile.32

2) Formal Validity

In Canada, the formal requirements of marriage are governed by provincial and territorial legislation. For example, the Ontario Marriage Act33regulates the solemnization of marriage in that province. It stipulates that no marriage may be solemnized in Ontario except under the authority of a licence or the publication of banns. It also defines specific requirements concerning waiting periods, parental consents, the attendance of the parties and witnesses, and penalties for false declarations. Non-compliance with statutorily presented formalities, though subject to penalties, does not render the marriage void unless the statute expressly or by necessary implication invalidates the marriage.34Section 31 of the Ontario Marriage Act expressly provides that

[if] the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract

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such marriage and after such solemnization have lived together and cohabited as man and wife, such marriage shall be deemed a valid marriage, notwithstanding that the person who solemnized the marriage was not authorized to solemnize marriage, and notwithstanding the absence of or any irregularity or insufficiency in the publication of banns or the issue of a licence.35There are four elements required for the deeming provision in section 31 to apply, namely:

1) the marriage must have been solemnized in good faith;

2) the marriage must have been intended to be in compliance with the Marriage Act;


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