Introduction

As we are in full bloom of the spring of 2025, I have some weddings to go. Despite the obvious cynicism that many family lawyers have about people getting married, I must confess that I still enjoy seeing people get married. The solemnization ceremony of a couple’s love for one another is special – it lets people know they have made a serious commitment to one another, separate and a party form simply dating or even living in a common law relationship.

I also recognize that marriage isn’t for everyone, for a multitude of personal, financial, or cultural reasons. That’s okay, because the latest “anecdote” is that half of all marriages end up in divorce anyway. For some people, though, the decision to get married is based on personal, financial, cultural, or religious reasons. So, if you decide that you are going to get married for any of those reason, you want to make sure that, in the end , you are actually legally married. And why would someone want that? Aside from the above reasons, there are legal rights that are bestowed on a married spouse that are not available to anon-married spouse. The most common right is the entitlement to property division as set out in the Family Law Act in Ontario. Despite a lot of myths, common law spouses do not have the same property rights that married spouses do.

This blog will set out an overview of marriages as defined by Ontario legislation. I will then discuss the legal test that parties must satisfy to prove to a court that they are married. Over the past few years, there have been parties who believe they went through a marriage-like ceremony, only to find out later on, when the relationship has ended, that they are not legally married, and therefore, not entitled to the same property rights that they thought they had. From the opposite perspective, there are some parties who will gladly want to know that they are not married, and thus, do not have to deal with property division upon separation as if they were married. Whichever side of the fence you may land on, I hope you find this blog helpful. Please understand that it is a simple blog, and not a complete treatise on the law of marriages.

The Marriage Act

In Ontario, we have the Marriages Act that defines and regulates legal marriages. It outlines the requirements for valid marriages, including:

• who can be married,
• who can perform ceremonies, and
• the process for obtaining marriage licenses or publishing banns.

It also covers aspects like the registration of religious bodies, oversight by the government, and the legal consequences of marriage.

Who Can Get Married?

Under the Marriage Act, any person who is of the age of majority may obtain a licence, or be married under the authority of the publication of banns, provided no lawful cause exists to hinder the solemnization.

In Ontario, you reach the age of majority when you reach 18 years of age. Otherwise, you are considered a minor. However, there is a built-in exception in the Act, where a minor who is of the age of sixteen years or more, and has the consent in writing of both parents in the form prescribed by the regulations, can be married.

How to Obtain a Marriage License and Recording Same

Under the Marriage Act, the clerk of every local municipality may issue a marriage license. However, the clerk of a township may not. There are exceptions to this provision, but generally speaking, any “big town” that has a city hall can issue you a marriage license, whereas smaller towns may not be able to do so.

The issuance of the license must be recorded by the issuer of the license. After a license is issued, and once the license is registered by a person who can solemnize the marriage, they must forward same to the Registrar General for the Province of Ontario. There is a registry of every person who can perform marriages, as well as everyone who has been married by such a person.

Publication of Banns

Another way of solemnizing a marriage is though the publication of banns. In essence, the banns give notice to the public that the parties to the marriage plan to declare their intention to marry openly, in an audible voice, during a divine service in the church, or churches, where both parties are in the habit of attending worship. Exactly how the banns are published is left up to the church or the faith community to address in their normal course of business on such matters.

Who May Solemnize a Marriage?

Under the Marriage Act, a person must apply for and be registered under the legislation as a person who can solemnize a marriage. Who that can be is also addressed in the Marriage Act. If the marriage ceremony is going to proceed under a secular basis, i.e. a civil marriage, the Marriage Act sets who can perform those ceremonies as well.

Under a civil ceremony, there is no particular format that is followed, unlike that of a religious ceremony. However, the Marriage Act does set out statements that must be make certain declarations.

Attendance of the Parties and Witnesses

The parties to the marriage must be present, as well as the person performing the ceremony, and two witnesses who musty sign the marriage license.

Marriages Solemnized in Good Faith (Deemed Valid Marriages)

Very importantly, the Marriage Act provides for situations when, perhaps, there was some “technicality” of the marriage process that was missed. If the parties to a marriage, solemnized in good faith, and intended to be in compliance with the Marriage Act, and are not under a legal disqualification to contract to a 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.

Recent Cases on the Legitimacy of a Marriage

As referenced above, there have been some recent cases that dealt with whether a marriage is marriage even if there was some technical breaches of the marriage. The case law has developed to identify some key principles. The four necessary elements of deem a marriage under s. 31 of the Marriage Act (the deeming provision) are as follows:

1. The marriage was solemnized in good faith;
2. The marriage was intended to be in compliance with this Act;
3. Neither of the parties was under a legal disqualification to contract such marriage; and,
4. After such solemnization the parties have lived together and cohabited as a married couple.

If a party is looking to establish that he or she was married, all four elements of the deeming provisions must be proven. If even one element is missing, a court could conclude that the parties were not married. At the end of the day, the court will assess the evidence presented to support or deny the elements of whether the relationship should (or should not) be a deemed marriage, as set out above.

Conclusion

As our society transitions from a predominant Judeo-Christian society to a secular one, and with an ever-increasing Islamic population, the courts will need to adapt to how marriages ceremonies are performed, or not performed, by those who are takes with performing the ceremony.

In a perfect world, there will be no need to rely on the deeming provisions under the legislation, as all legal and technical aspects of getting married will be complied with. But that’s not the society we live in. There are some people who let their “loved one” believe that they are, or are not going through a marriage ceremony, to achieve the end goal of preserving themselves, or denying the other party, of certain property rights. Although it has been said that “love conquers all,” I live in a world where money, or lack thereof, “is the root of all evil.”

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca.