Marriage and Domestic Contracts

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 299-318

299

Chapter 19 Marriage and Domestic Contracts

CHAPTER 19

is chapter discusses the requirements for getting married and the role that domestic

contracts play in issues arising when couples live together, marry, or separate.

MARRIAGE

Under the Canadian Constitution, the federal government is authorized to make marriage

laws. is enables the federal government to ensure that marriage laws are the same in

all provinces. People who wish to get married in Canada must meet certain federal legal

requirements which are known as essential requirements. e Canadian Constitution

also permits each province to make its own laws relating to the steps which people must

follow in order to get married, and such provincial legal requirements are known as formal

requirements.

What is marriage

Under Canada’s Civil Marriage Act, “marriage, for civil purposes, is

the lawful union of two persons to the exclusion of all others.” Marriage is a legal contract

between two people who may be of the same, or opposite, sex. Same-sex marriages

(marriages between two men or two women) became legal in Canada on July 20, 2005,

with the passing of the Civil Marriage Act. Many provinces permit same-sex marriages,

including Ontario.

Essential requirements

To be eligible for marriage, people must meet the following

essential requirements:

Unmarried status

Neither party may marry if such party is already married.

If either party does so, the guilty party will have committed the crime of bigamy

(from the Greek, two concurrent marriages), and the second marriage would be

invalid because Canada fosters a monogamous society (one spouse at one time).

Mental capacity

At the time of marriage, both parties must be able to understand

the duties and responsibilities of the marriage they are entering into; in addition,

neither must be under the inuence of drugs or alcohol. If mental capacity exists

at the time of marriage but ceases to exist afterward, the marriage remains valid.

Close relationships

Under Canada’s Marriage (Prohibited Degrees) Act, persons

cannot marry if they are lineally related, i.e. closely related by blood or adoption.

For example, a person cannot marry his or her parent, grandparent, child,

Legal TIP

The engagement

ring — in Ontario, you

cannot sue for breach

of promise of marriage.

The general rule is the

party who broke off

the engagement forfeits

the ring.

MARRIAGE

AND DOMESTIC

CONTRACTS

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

300 Legal Office Procedures

grandchild, great grandchild, brother, sister, half-brother, or half-sister. Persons

not too closely related by blood, e.g. uncles and nephews, or by anity (i.e. by

marriage) or adoption are not prohibited from marrying each other by reason

only of their relationship.

Free consent

Neither party must be coerced into the marriage, and there

must be no fraud or misrepresentation. An unrevealed pregnancy, for example,

constitutes misrepresentation.

Sexual capacity

Each party must be able to perform sexual intercourse. To be

valid, a marriage must be consummated. A marriage is consummated on the rst

occasion when the spouses engage in post-marital sexual intercourse. If either

party is unable to perform sexual intercourse, as for example, through impotence,

the marriage is said to be non-consummated and may be annulled. A spouse’s

refusal to have sex, however, is not in itself a ground for annulment on the basis

of non-consummation.

Age (as established by each province)

e provinces establish the age required

for marrying, and the age varies among the provinces. In Ontario, the age is

eighteen without parental consent and sixteen or seventeen with the consent in

writing of both parents. In Ontario, persons under the age of sixteen cannot

marry, even with permission from their parents.

Formal requirements Formal requirements are established by each province and include

such things as getting a marriage licence, being married by someone qualied to perform a

marriage ceremony, and making sure that the event is witnessed and registered. Under Ontario’s

Marriage Act, the formal requirements for getting married in Ontario include:

Marriage licence

You may download the marriage licence application from the

ServiceOntario website. Once you have lled out the application for marriage licence, you

must apply for the marriage licence in person, usually at the local city hall or municipal

oce. Both of you must bring valid identication, such as a birth certicate (along

with any change of name certicate), current passport, record of immigrant landing

or Canadian citizenship card, along with photo identication, when applying for the

marriage licence. If both of you have signed the application for marriage certicate,

then only one of you must attend in person and bring for both of you the required

identication. ere is a fee for purchasing a marriage licence. e marriage licence is

usually issued on the same day, provided all documentation is correct. e marriage

licence is valid for three months from the date of purchase. is means you must get

married before the marriage licence expires because if it does expire you must purchase

another one

.

he ceremony

You can have a civil or a religious ceremony. In either case, you

require a marriage licence. If you wish a civil ceremony (e.g. being married at the

city hall instead of having a church wedding), you must book an appointment

for it at your local city hall or municipal oce. Civil ceremonies are performed

by a judge or a justice of the peace. Religious ceremonies must be performed

by a religious ocial, e.g. a priest or, for some religions, a publication of banns.

(Usually, you do not need a marriage licence if you are having your banns read in a

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.