Is That Marriage Valid?

January 15, 2022

By Margaret Waddington

You might think that in the 21st century, we no longer need worry about whether a marriage is valid – it seems like that question should be limited to an inconvenient plot point about a couple waking up in Vegas… oh, sorry, that was an episode of The Big Bang Theory.

In that case Penny and Leonard had to get Penny’s ex-boyfriend Zack to agree to a divorce so that their own wedding could proceed.

It is not so funny however when, after years of behaving like you are married, your spouse alleges that the marriage is not valid. This can be expensive, because in Ontario, the Family Law Act provisions related to equalization of family property (division of marriage assets) only apply to couples who are legally married. Usually, that means validly married, although there is some expanded meaning related to good faith “mistakes” and what the couple intended.

That expanded meaning is limited, which led to the Court of Appeal decision in Lalonde v. Agha. The issue in that case was whether section 31 of Ontario’s Marriage Act could validate a marriage performed outside of Ontario (in Tennessee) when the couple had a purely religious ceremony and no steps were taken to obtain a licence or officially resister the marriage.

The couple lived together as if they were spouses for eighteen years.  All the paperwork they filled out showed them as married, including tax returns, hospital records, birth records, and mortgage documents. Only after they split did the husband raise the issue of the marriage being invalid.

Both parties also testified that they were unaware that they had not complied with Tennessee law, and believed for the past 18 years that they were in fact married.

Section 31 of the Marriage Act provides that:

If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, 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.

The key phrase in this mass of words is “such marriage shall be deemed a valid marriage”.

The trial judge conveniently sorted out the issue and found the marriage valid because:

  1. The parties’ marriage was entered into in good faith. Both parties wanted to be married and did so in a religious ceremony.
  2. There was no intentional or deliberate non-compliance or indifference as to compliance. The parties wanted to be legally married and therefore must have intended to follow the law.
  3. There was no evidence that either party was under a legal disqualification to contract marriage (e.g. they were not already married).
  4. The parties lived together and cohabited as a married couple after the religious ceremony at the mosque.

That meant the wife was entitled to an equalization payment (division of marriage assets). The husband appealed the decision.

At the Ontario Court of Appeal they first rejected outright the argument that section 31 of the Marriage Act only saves marriages performed in Ontario. Other sections of the Marriage Act explicitly state where the section only applies to Ontario, Section 31 does not contain any such limitation. Public policy favours recognizing as valid a marriage where the parties acted like they were married, section 31 applied.

Second, the court considered whether the subjective good faith and intent of the parties matters. In other words, if the section only cures objective errors (minor technicalities etc.), not the complete absence of the legal formalities required. Once again, the court relied upon the public policy that favours marriage as a social institution to find in favour of the validity of the marriage. Also, section 31 expressly refers to problems with the marriage licence.

This does not mean however that every invalid marriage can be saved or that formalities do not matter. The reference to intention means that if the parties intended to be married only for religious purposes, but not to be legally married, then the marriage would not be deemed valid. For example, in an earlier case, the couple intentionally did not register their marriage so the husband could continue to receive a widower’s pension. That marriage was not validated.

However, in Lalonde v. Agha, after the husband enjoyed the benefits of the marriage and both parties intended to be married, “the law will not permit him in a subsequent action to plead his own fraud upon the bride in order to have the ceremony declared a nullity.” Essentially, stating that he cannot now benefit from the lack of legal formality to the detriment of his wife.

Facts matter. Among the many reasons why it is risky to represent yourself in a divorce or separation is that not only do you need to know what law applies in your situation, but more importantly, which facts matter, and how to prove them. Consulting a family law lawyer at Weilers Law is a modest investment when protecting your legal rights and entitlements.

Marriage breakdown is no joke. Unlike on television, we at Weilers Law treat your matter seriously.