Whether your wedding occurred as a traditional marriage ceremony in Ethiopia, a beach vacation wedding in Portugal, or a wedding in Las Vegas, there may be a time that you are required to prove the validity of your foreign marriage. Spouses may have to demonstrate the validity of their foreign marriage for various reasons, including when parties are seeking a divorce and division of matrimonial property or when parties seek to benefit as a ‘spouse’ under certain government programs.
When determining whether parties are considered married under Canadian law, a legal analysis must be performed to determine if the foreign marriage is valid. While foreign marriages are typically recognized under Canadian law, it is important that parties satisfy the legal requirements of the jurisdiction of their marriage and obtain the necessary documentation as proof.
Proving a Foreign Marriage
There are two essential elements that must be proven before a Canadian court will find that a foreign marriage is valid. First, the lex loci celebrationis, or “formal validity,” requires that the formalities of the wedding follow the required procedure of the jurisdiction where the ceremony occurred. Second, the lex domicilii or “essential validity” requires that the parties have capacity as determined by the laws where the parties were domiciled before the marriage.
Formal Validity Requirement
Proving formal validity requires evidence that demonstrates compliance with the applicable foreign laws for marriage solemnization. Where there is a foreign marriage certificate, it must be shown that the marriage certificate is recognized by the tribunals of the issuing country as an authentic record. Evidence may come from an expert on the foreign law or a non-expert who is recognized as being able to provide such evidence.
If there is no formal documentation that proves the foreign marriage, the courts may apply the common law to decide whether or not to presume that a marriage was validly conducted. In the foreign marriage context, where there is evidence of cohabitation and a marriage ceremony, there is a strong presumption that a marriage exists. This presumption can only be rebutted with strong evidence to the contrary.
Essential Validity Requirement
Essential validity in the foreign marriage context relies on the “dual domicile doctrine”. This principle requires each party to have capacity to marry in the country in which they were domiciled at the point of marriage. If one or both parties are domiciled in a foreign jurisdiction, the standard for capacity is defined by the foreign jurisdiction’s requirements.
In Canada, for instance, capacity is typically assessed on four main criteria: 1) whether the parties are old enough to marry; 2) whether the parties are outside the prohibited degree of relatedness; 3) whether the parties have the mental capacity to marry; and 4) whether or not the parties are already married.
In most contexts, capacity would be presumed. The onus lies on the party challenging the validity of the marriage to prove that one of the spouses did not have capacity at the time of marriage.
Conclusion
For couples who anticipate getting married outside of Canada, it is important to understand the foreign marriage requirements in the jurisdiction you seek to marry in. This can be done by contacting the embassy, high commission, or consulate of the country where you plan to get married. To learn more about foreign marriages in Canada kindly click this link.
For parties who have married outside of Canada and now seek to prove the validity of their marriage, it is important to contact a family lawyer who can provide sound advice regarding the subject matter.
Family Central Law Office LLP is eager to assist clients with their legal matters relating to foreign marriages. To learn more about your rights and the legal services we provide, please contact us today for a free consultation with one of our family lawyers by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
