Marriage Annulment in Canada
The Legal Termination of an Invalid Marriage under Canadian Law
This article looks at the requirements for a legally valid marriage and the legal issues surrounding annulment in Canada.
The requirements for a valid marriage in Canada can be broken down into categories of essential and formal validity. Marriages that do not meet any of these requirements may be annuled by a court on the application of one of the parties to the marriage. Marriages that meet the requirements are deemed valid and can only be terminated by a divorce.
Essential Validity
- Sexual Capacity. The parties to a marriage must have the capacity to consummate it. The capacity must exist at the time of marriage and the lack of the capacity may render the marriage voidable. Proof of insincerity of motive in using a lack of sexual capacity to annul a marriage can undermine the position of the applicant. That is, if an applicant had prior knowledge of their partners inability to perform sexually they will not be allowed to use the incapacity to get out of a situation they freely entered into. A voidable marriage can only be annulled by one of the parties within the marriage during their lifetimes.
- Capacity to Consent. At the time of the ceremony the parties must possess the mental capacity to consent to marriage. Mental capacity may be affected by mental illness, developmental disabililty, age or intoxication. However, the courts have not held marriage to require a high level of understanding and marriages entered into where capacity was inhibited can be taken as being affirmed by the parties in light of their subsequent actions. (ie. A person who was extremely intoxicated on their wedding day can not have the marriage annulled if their subsequent actions affirm their marriage status).
- Freedom of Consent. Consent must be given freely at the time of the ceremony (ie. no duress/mistake). In assessing whether the consenting party exercised sufficient free will the court must consider the particular circumstances, character, and age of the party. The question is not whether a reasonable person would have entered freely into the marriage but rather whether the party in question freely entered into the marriage (subjective test). For duress, the applicant must show that they genuinely believe that their life, health, or liberty were threatened. For mistake or fraud the applicant must show that there was a genuine misrepresentation as to the nature of the ceremony that they were participating in, or with regards to the legal identity of the other party. However no amount of mistake as to the qualities or attributes of a partner will affect the validity of a marriage.
- Requisite Age.The federal age requirements for a valid marriage are 14 for males and 12 for females. There are however, provincial age restrictions on marriage that generally exceed the federal age requirements.
- Genetic/Adoptive Relationship. A person may not marry someone with a direct genetic relationship or a person in the adoptive position that would lie within a direct genetic line. Essentially a marriage between persons who are related.
- Unmarried Status. A person must be unmarried at the time of the marriage ceremony. A bigamous marriage is void ab initio and is not cured by the subsequent death of the first spouse.
Formal ValidityThe formal requirements for a valid marriage depend on the provincial legislation governing marriage ceremonies in the relevant jurisdiction. Typical requirements include the licensing and registration of the religious representative performing the ceremony, the consent of guardians for any parties under 19 wishing to marry, and that the marriage certificate is duly executed and registered with the provincial authority.
This article is legal commentary only and should not be taken as legal advice. Consult a lawyer in your area with any particular legal questions that you may have.
