Hello. My name is Nick Slinko, and I am a lawyer at the Feldstein Family Law Group.
I am somewhat surprised by the amount of people who come into our office with the expectation that property division, by law, upon the breakdown of a common law relationship is dealt with in the same manner as it would be where married people have separated. As you may have learned by watching our video blog on the differences between common law and marriage, you will note that the division of property between separated married people, which is also referred to as Equalization, only applies by default to married couples, and not to cohabiting spouses.
Because Ontario is a multicultural province, we at the Feldstein Family Law Group are prepared to deal with another type of distinction – religious versus civil marriage. The question I am considering today is: what would happen if the parties engaged in only a religious wedding ceremony and chose NOT to register their marriage or obtain a marriage license? Are they considered married or unmarried spouses? Furthermore upon their separation, will the equalization provisions of the Family Law Act apply?
As per the Marriage Act, couples are required to obtain a marriage license prior to getting married, or if neither party has been married before, then they can have a publication of banns, which is essentially the announcing and publishing by a Church or other religious institution of the parties’ marriage.
However, if a situation arises wherein the parties have not complied with or only partially complied with the Marriage Act requirements, the issue upon their separation would likely be whether or not their religious marriage should automatically be considered invalid, which is very significant for purposes of determining if there will be an equalization of assets. Fortunately for many separating spouses in this situation, the Marriage Actprovides a fallback provision of sorts, which is that a marriage that was solemnized in good faith is, in fact, a valid marriage. However, in order for this saving provision to be effective, the case law on the topic indicates that the Ontario Court of Appeal has established a four-part threshold test, which is as follows:
- The marriage must have been solemnized in good faith;
- The marriage must have been intended to be in compliance with the Marriage Act;
- Neither party was under a legal disqualification to contract marriage; and
- The parties must have lived together and cohabited as a married couple after solemnization.
All four of these criteria must be met.
Ultimately this becomes a very fact-specific analysis and so it is difficult to assess in a generalized manner. Undergoing this analysis is very difficult and establishing a valid marriage to the Court is very important in situations where you wish to make a successful claim for equalization. If you would like assistance in a situation of imperfect compliance with the Marriage Act, any of our lawyers at the Feldstein Family Law Group are able to assist. You can contact us to set up an initial consultation at (905) 581-7222.
Thanks for watching!