Marriage
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 401-424 |
CHAPTER
21
MARRIAGE
A.
CONSTITUTIONAL
FRAMEWORK
The
Canadian
Constitution
divides
legislative
power
over
marriage
be
tween
the
federal
and
provincial
governments.
Thus,
section
91(26)
of
the
Constitution
Act,
1867
grants
to
the
Parliament
of
Canada
authority
over
“
Marriage
and
Divorce,
”
whereas
section
92(13)
grants
the
prov
inces
general
legislative
authority
over
“
Property
and
Civil
Rights
in
the
Province
”
and
section
92(12)
confers
on
the
provinces
jurisdiction
over
“
The
Solemnization
of
Marriage
in
the
Province.
”
1
In
Hill
v
Hill,
Hyndman
JA
determined
that,
as
a
result
of
the
division
of
powers,
the
federal
government
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
par
ties
[should]
be
within
the
Province
after
marriage.
”
2
Equally,
the
Privy
Council
made
it
clear
in
Re
The
Marriage
Law
of
Canada
that
the
Can
adian
Parliament
did
not
have
exclusive
jurisdiction
over
all
questions
relating
to
the
validity
of
marriages.
3
Section
92(12)
enabled
provin
cial
legislatures
“
to
enact
conditions
as
to
solemnization
which
[might]
affect
the
validity
of
the
contract
[of
marriage].
”
4
In
Kerr
v
Kerr,
the
Supreme
Court
of
Canada
held
that
solemnization
of
marriage
within
1
(UK),
30
&
31
Viet,
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.
401
402
CONFLICT
OF
LAWS
section
92(12)
“
include[d]
not
only
the
essential
ceremony
by
which
the
marriage
[was]
effected,
but
also
parental
consent
where
such
con
sent
[was]
required
by
law.
”
5
Thus,
provincial
legislatures
were
compe
tent
“
to
make
the
preliminaries,
leading
up
to
the
marriage
ceremony,
conditions
precedent
to
the
solemnization
of
the
marriage
”
and
“
to
de
clare
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.
B.
FORMAL
VALIDITY
1)
General
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.
7
It
made
it
clear
that
the
forms
of
entering
into
the
contract
of
marriage
were
to
be
regulated
by
the
law
of
the
place
where
the
marriage
was
celebrated.
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.
8
However,
there
was
no
civil
ceremony
as
required
by
French
law.
The
Privy
Council
held
that
the
marriage
was
void
because
of
its
failure
to
comply
with
the
law
of
the
place
of
celebration.
Viscount
Dunedin
expressed
the
applicable
principle:
If
there
is
one
question
better
settled
than
any
other
in
international
law,
it
is
that
as
regards
marriage
—
putting
aside
the
question
of
cap
acity
—
locus
regit
actum.
If
a
marriage
is
good
by
the
laws
of
the
country
where
it
is
effected,
it
is
good
all
the
world
over,
no
matter
whether
the
proceeding
or
ceremony
which
constituted
marriage
ac
cording
to
the
law
of
the
place
would
or
would
not
constitute
mar
riage
in
the
country
of
the
domicile
of
one
or
other
of
the
spouses.
If
the
so-called
marriage
is
no
marriage
in
the
place
where
it
is
cele
brated,
there
is
no
marriage
anywhere,
although
the
ceremony
or
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
(1861),
9
HL
Cas
193
[Brook].
8
(PC).
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