J. Legal Capacity

Author:Julien D. Payne - Marilyn A. Payne

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A valid marriage presupposes that both parties have the capacity to marry and intermarry. Legal incapacity may have arisen historically because the parties were of the same sex and may arise by reason of age, prior marriage, or under prohibited degrees of consanguinity or adoption.

1) Same-Sex Marriages

As stated previously, marriage for civil purposes has been legislatively redefined as the lawful union of two persons. Consequently, members of the same sex can now intermarry.86

2) Age

Pursuant to principles upheld by the ecclesiastical courts in England more than 150 years ago, any marriage involving a person under the age of seven years is null and void. Marriages of males between the ages of seven and fourteen years and of females between the ages of seven and twelve years are voidable at the option of the underage party but may be ratified by continued

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cohabitation after the upper age limit has been reached.87Provincial and territorial Marriage Acts in Canada also regulate the age of marriage by licensing and other requirements, including parental consent for children under the age of majority, which is eighteen or nineteen years of age depending on which province or territory the child lives in.

3) Prior Marriage

Marriage presupposes exclusivity between the spouses.88Accordingly, a valid and subsisting marriage bars any subsequent marriage by either spouse. Any purported second marriage is null and void, regardless of whether it will ground a charge of bigamy or polygamy under the Canadian Criminal Code.89

An order may be made pursuant to section 9 of the Ontario Marriage Act,90

which presumes the death of a missing spouse and permits the applicant to remarry under the authority of a licence or the publication of banns. An order of presumed death has limited effect; it does not validate the remarriage in the event that the missing spouse reappears.91The more appropriate course of action, therefore, for a spouse whose consort has disappeared without trace is the institution of divorce proceedings to terminate his or her marital status. Any subsequent remarriage with a third party will then be valid. But divorcees must not jump the gun. Pursuant to section 12 of the Divorce Act,92a divorce judgment in Canada does not usually become effective until the thirty-first day after the day on which the judgment granting the...

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