The Formalities of a Valid Marriage
45 If the parties to a marriage, solemnized in good faith and intended to be in compliance with the legislation, are not under a legal disqualification to contract such marriage and have lived together and cohabited as a married couple after such solemnization, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.[FN1] Where neither party has the requisite good faith, no defect will be overlooked and the marriage will be regarded as invalid.[FN2]
§46 The mere irregularity of failing to wait for the expiration of the time set for the issuing of the licence before getting married will not make the marriage a nullity.[FN3] If a marriage does not formally comply with the legal requirements, the party who wishes to prove the validity of the marriage has the burden to prove the marriage was valid on a balance of probabilities.[FN4]
§47 Being under age at the time of obtaining a licence does not invalidate the subsequent marriage, unless the provincial statute expressly states that the marriage is void.[FN5]
§48 The validity of a marriage and its formal requirements are determined according to the law where the marriage took place.[FN6] If a marriage has been entered into in a country by the law of which no formalities are required other than an agreement to marry followed by cohabitation, such marriage will be regarded as formally valid in Ontario.[FN7]
§49 Whether a religious ceremony is required depends entirely upon the law of the place where the marriage is celebrated; a marriage valid under such law cannot be questioned on the ground that it violates religious principles binding on one or both parties to the marriage.[FN8] On the other hand, a religious marriage is treated as void if it does not receive recognition under the law of the place where the marriage is celebrated.[FN9]
§50 If a marriage has taken place in another country and all that is known is that it was publicly solemnized by a minister or other person who usually solemnizes marriages in that country, and that the parties ever after were treated and reputed there as man and wife, the court should, in the absence of express proof of some law of that country rendering such a marriage illegal, presume the marriage to have been duly contracted according to the law of the country in which it took place.[FN10] In respect of the formal validity of the marriage, that is, the validity of the ceremony, once the ceremony and subsequent cohabitation have been proven, the law will presume that everything necessary to the validity of the ceremony occurred or was performed.[FN11] Retroactive legislation of foreign countries validating informal marriages contracted within the foreign jurisdiction is recognized as binding.[FN12] Consent must be considered as part of the form of marriage, and the forms of entering into a contract of marriage are to be regulated by the lex loci contractus.[FN13]
FN1. Marriage Act, R.S.A. 2000, c. M-5, s. 23(1); Marriage Act, R.S.B.C. 1996, c. 282, s. 11 [am. 2002, c. 74, s. 45; 2011, c. 25, s. 403]; Marriage Act, R.S.M. 1987, c. M50, C.C.S.M., c. M50, s. 29 [am. 2008, c. 42, s. 62(5)]; Marriage Act, R.S.O. 1990, c. M.3, s. 31 [am. 2005, c. 5, s. 39(5)]; Marriage Act, S.S. 1995, c. M-4.1, s. 21; Luu v. Ma (1999), 1999 CarswellOnt 493 (Ont. Gen. Div.) (parties married in Vietnam; if marriage not valid according to Vietnamese law, marriage validated pursuant to Marriage Act, s. 31; parties intending to marry, living together as husband and wife and having child together); Upadyhaha v. Sehgal (2000), 2000 CarswellOnt 3306 (Ont. S.C.J.) (saving provision not operating to create valid marriage as parties not living together or cohabiting as man and wife after ceremony); McKenzie v. Singh (1972), 1972 CarswellBC 163 (B.C. S.C.) (marriage for immigration purposes; marriage not entered into in good faith); Alspector v. Alspector (1957), 1957 CarswellOnt 39 (Ont. C.A.) (lack of marriage licence not invalidating marriage); Czuba v. Hassan (1977), 1977 CarswellOnt 172 (Ont. H.C.) (parties intending compliance); Alspector v. Alspector (1957), 1957 CarswellOnt 38 (Ont. H.C.); affirmed (1957), 1957 CarswellOnt 39 (Ont. C.A.) (position under Act being unclear when only one party acting in good faith); Friedman v. Smookler (1963), 1963 CarswellOnt 48 (Ont. H.C.); Birinyi v. Lindstrom (2009), 2009 CarswellBC 180 (B.C. S.C.).
FN2. McKenzie v. Singh (1972), 1972 CarswellBC 163 (B.C. S.C.).
FN3. Penner v. Penner (1947), 1947 CarswellBC 5 (B.C. S.C.).
FN4. Chhokar v. Bains (2012), 2012 CarswellOnt 15208 (Ont. S.C.J.).
FN5. Hobson v. Gray (1958), 1958 CarswellAlta 27 (Alta. T.D.); but see Ross (MacQueen) v. MacQueen (1948), 1948 CarswellAlta 6 (Alta. T.D.).
FN6. Cao v. Le (2007), 2007 CarswellBC 737 (B.C. S.C.) (parties having no ceremony to mark marriage but marriage registered in appropriate government office in Vietnam; numerous people in Vietnam satisfied that parties validly married under Vietnamese law; accordingly, parties’ relationship meeting requirements of marriage under Vietnamese law; parties therefore spouses for purposes of Canadian legislation in question).
FN7. Forbes v. Forbes (1912), 1912 CarswellOnt 25 (Ont. H.C.).
FN8. Despatie v. Tremblay (1921), 1921 CarswellQue 59 (Quebec P.C.) (Quebec law).
FN9. De Wilton, Re, [1900] 2 Ch. 481; but see Alspector v. Alspector (1957), 1957 CarswellOnt 38 (Ont. H.C.); affirmed (1957), 1957 CarswellOnt 39 (Ont. C.A.) (parties not obtaining licence; marriage performed according to rites of Jewish faith held valid).
FN10. Doe d. Breakey v. Breakey (1846), 2 U.C.Q.B. 349 (U.C. Q.B.) at 355; Robb v. Robb (1891), 20 O.R. 591 (Ont. H.C.) at 597 (well known principle of law and morality asserting, where doubt existing as to legality of marriage, that courts of justice are bound to decide in favour of marriage); Sottomayer v. De Barros (1877), 3 P.D. 1 (Eng. C.A.); McColm v. McColm (1969), 1969 CarswellOnt 222 (Ont. H.C.) (Scottish marriage irregular in form but valid under Scottish law); see also Harris v. Cooper (1871), 1871 CarswellOnt 177 (Ont. Q.B.) (marriage of slaves).
FN11. Clark v. R. (1921), 1921 CarswellNB 3 (S.C.C.); Tero, Re (1949), 1949 CarswellBC 61 (B.C. C.A.); Forbes v. Forbes (1912), 1912 CarswellOnt 25 (Ont. H.C.).
FN12. Starkowski v. Attorney-General (1953), [1954] A.C. 155 (U.K. H.L.) (prior religious marriage validated by retroactive legislation before celebration of subsequent marriage).
FN13. Hunt v. Hunt (1958), 14 D.L.R. (2d) 243 (Ont. H.C.).
