Marriage

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 380-401

380

CHAP TER 21

MARRIAGE

A. CONSTITUTIONAL FR AMEWORK

The Canadian Constitution divides legislative power over mar riage be-

tween the federal and provincia l governments. Thus, section 91(26) of

the Constitution Act, 1867 grants to the Parliament of Canad a 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 jur isdiction

over “The Solemnization of Marriage in t he Province.”1 In Hill v. Hill,

Hyndman J.A. determined t hat, as a result of the div ision of powers,

the federal government had “the exclusive right to legislate as to who

[should] or [should] not be capable of marr ying,” while t he provincial

legislatures were free to decide “what the ind ividual 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 provi n-

cial legislatu res “to enact conditions as to solemn ization which [might]

affect the validity of the contr act [of marriage].”4 In Kerr v. Kerr, the

1 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

2 [1929] 2 D.L.R. 735 at 741 (Alta. S.C.A.D.).

3 (1912), 7 D.L.R. 629 (P.C.).

4Ibid. at 636.

Marriage 381

Supreme Court of Canada held that solemnization of marriage within

section 92(12) “ include[d] not only the essenti al ceremony by which the

marriage [was] effected, but also parental consent where such consent

[was] required by law.”5 Thus, prov incial legislat ures were comp etent

“to make the preliminaries, leading up to the marriage ceremony, con-

ditions precedent to the solemnization of the ma rriage” and “to declare

that in the event of these conditions precedent not being complied wit h

no valid marriage ha[d] taken place.”6

B. FORM A L VALIDITY

1) Ge n eral

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

Lords drew the dist inction between the formal validity of a marr iage and

its essentia l validity, a similar dist inction to that drawn in the Canadian

Constitution.7 It made it clear that the forms of enter ing into the contract

of marriage were to be reg ulated by the law of the place where the ma r-

riage was celebrated. In Berthia ume v. Dastous the parties, who were b oth

domiciled in Quebec, went through a ceremony of marr iage 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 Coun-

cil held that the marriage was void because of its failure to comply with

the law of the place of celebration. In giving judgment for the court,

Viscount Dunedin clearly expressed the applicable principle:

If there is one quest ion better settled t han any other in i nternationa l

law, it is that as regards marriage—putting aside the question of cap-

acity — locus regit actum . If a marri age is good by the laws of the

country where it is ef fected, it is good all the world over, no matter

whether the proceedi ng or ceremony which constituted ma rriage ac-

cording to the law of the place would or would not constitute m ar-

riage in the countr y of the domicile of one or other of the sp ouses.

If the so-ca lled marr iage is no marr iage in the place where it is cele-

brated, there is no ma rriage any where, although the ceremony or

5 [1934] 2 D.L.R. 369 at 375 (S.C.C.), Lamont J. See also Alberta (Attorney-Ge ner-

al) v. Underwood, [1934] S.C.R. 635.

6Ibid.

7 (1861), 9 H.L. Cas. 193 [Brook].

8 [1930] A.C. 79 (P.C.).