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

CHAPTER 21

MARRIAGE

A.CONSTITUTIONAL FRAMEWORK

The Canadian Constitution divides legislative power over mar riage 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 J.A. 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 legislatu res “to enact conditions as to solemn ization which [might]

affect the validity of the contract [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, provincial legislatures were competent

“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.FORMAL VALIDITY

1) General

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 regulated by the law of the place where the mar-

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

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 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 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 marr iage in the place where it is cele-

brated, there is no marriage anywhere, 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.).