Validity of Marriage, Recognition of Foreign Marriage and Divorce in Canada

For a marriage to be considered valid, it has to possess essential validity and formal validity. Essential validity relates to the parties' legal capacity to marry, whereas formal validity relates to the ceremonial requirements for a marriage to be considered valid. In Canada, the essential validity of a marriage is encapsulated in Section 91(26) of the Constitutional Act, 1967 whereas, the formal validity is a provincial matter that varies from one province to another. Historically, marriage was considered valid if it was between a man and a woman. However, changes have been occasioned and marriage is now defined as the lawful joining of two persons excluding all others.

Section 2 of the Canadian Civil Marriage Act defines an essentially valid marriage to include marriage between two persons of the same sex. It stipulates the minimum age of marriage to be 16. This differs from the Korean context, whereby the age of consent is 20 years for Koreans and 19 for international members and requires marriage to be based on enlightened and free consent. In MA v. BB 2018 ONSC 4582, 12 RFL, Cullity J held that consent is key to essential validity, and marriage consent cannot be obtained by the proxy. This differs from the situation in Korea because males over 18 years and females over 16 years may marry with the guardian's or parent's consent.

In Canada, same-sex marriage is allowed. However, this differs from other jurisdictions and countries like Korea, where same-sex marriage is prohibited. In Halpern v. Toronto (2002), Blair J held that outlawing same-sex marriage is a violation of the Charter of Human Rights. He held that marriage should be viewed from a broader perspective as opposed to the traditional view whereby the sole purpose of marriage was procreation. In the current world, there is more to marriage than procreation. There is: mutual support and care, shared social and physical activities, moral and intellectual stimulation, and psychological and economic interdependence. Further, Section 2 of the Civil Marriage Act states that for civil purposes, marriage is the lawful joining of two persons excluding all others. Also, Section 4 of the Civil Marriage Act states that marriage is not void or voidable by reason that spouses are of the same sex.

As much as same-sex marriages are legalized in Canada, polygamous marriages are prohibited. In Canada, marriage is a monogamous institution, and Section 293 of the Criminal Code criminalizes polygamy and terms it as an indictable offense. The Chief Justice laid out the justification for a prohibition of polygamous marriage as such marriages increase the poverty rate. Women in polygamous marriages are likely to suffer from domestic violence, sexual abuse, psychological and physical harm, and competition from co-wives is likely to lead to mental health issues and depressive disorders. Children in polygamous relationships are also likely to suffer imminent harm as they may be exposed to behavioural, emotional, and physical problems. In Canada, where one of the parties marrying is already in an existing marriage relationship, the marriage is considered void. This is because marriage is considered as a lawful joining of two persons to the exclusion of others.

In Canada, a marriage may be annulled on the ground of impotence if the following conditions are met: (a) the condition existed prior to the marriage, (b) the incapacity pleaded must be such as to render intercourse impractical, (c) the incapacity may stem from a 'physical or mental or moral disability, and (d) the sterility is incurable.

Both in Canada and Korea, marriages are prohibited on the grounds of affinity and consanguinity; for two people to be married, they must not be related by blood or marriage. For instance, a father should not marry his daughter in law. Such marriages are prohibited as they may lead to a child with deformities being born and because the purpose of marriage is to encourage social interactions and as such marriage within the same family are prohibited.

In conclusion, for a marriage to be considered valid in Canada, one must consent freely and deception or mistake does not invalidate a marriage. One must be sixteen years and above, and two people of the same sex can get married. However, I think the law should also change to allow marriages based on deception to be void.

Recognition of foreign marriages in Canada

Recognition of foreign marriages is often topic foreign spouses consider critically. The question of whether a foreign marriage is valid or not can be a critical determinant of certain rights in Canada, i.e. filing of tax returns.

Under Canadian law, a marriage celebrated in a foreign country will be regarded as legally valid within Canada if:

● Marriage is legal according to the laws of the country where it took place. For example, same-sex marriage is not recognized in either North or South Korea. Spouses who wish to secure recognition of such marriage will be unsuccessful in Canada, even though same-sex marriage is allowed in Canada.

● The marriage complies with Canada's laws on marriage, which are as stated above. Individuals can only be married to 1 person at a time, and close relatives cannot get married to each other etc.

Where there is any doubt concerning the legality of a marriage in the country where it was celebrated, it will be the responsibility of the spouses to prove that their marriage is legal. This can be done by presenting all of the important documents pertaining to marriage.

Many times, in recognition of foreign marriages, the question of foreign divorces come up. For example, if the spouses were divorced in a foreign country, would such divorce be recognized in Canada? Canadian law recognizes such divorces. But a foreign divorce will only be recognized in Canada if at least one of the spouses was 'ordinarily resident' in the country for a year before obtaining a divorce. Examples were talked about in-class where in the case of Al Sabki v. Al Jajeh, 2019 ONSC, the wife who lived in Canada for multiple years was able to successfully apply for divorce in Ontario due to their divorce not being recognized in Syria, where neither the husband nor wife lived in for 20 years. Although both parties held Syrian citizenship, the Court concluded that there was no "real & substantial connection" to Syria. Contrary to the case Mattar v. Elbarbary (Ont. SCJ, 2019), although having a property in Canada, the Canadian Court recognizes the foreign divorce as they had clear "real & substantial connections" to Sudan.

This simply means that for foreign divorce to be recognized in Canada, one or her spouse must have lived in the country where she obtained the divorce for at least a year before the divorce. The good news is that, this condition remains the same if you were married elsewhere and want to divorce in Canada.

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