What makes a marriage “valid” under Canadian law?

Jan, 2025

Marriage is defined in the federal Civil Marriage Act as “[…] the lawful union of two persons to the exclusion of all others”.

There are multiple factors involved when it comes to having a legal civil marriage under federal Canadian law.

The law requires that the parties be two persons, have capacity to consent to the marriage, capacity to consummate the marriage, not be within the prohibited degrees of consanguinity and affinity, not be in a previous existing marriage, attain the age of 16, and abide by the provincially regulated formalities.

The requirement of “two persons” stipulates that polygamous couples cannot register for legal civil marriage. The law does not restrict the sex or gender of said two persons as civil marriage between same-sex couples has been legalized in Canada for decades now.

The requirement for capacity to consent considers the mental capacity of the individuals at the time of marriage. That includes consideration of their mental health, if they were under the influence of drugs or alcohol, mental disabilities, etc. Additionally, capacity to consent considers contextual factors surrounding the marriage such as if duress, undue influence or fraud were present at the time of marriage.

The requirement of capacity to consummate the marriage is a common law principle that is typically not enforced in today’s courts stringently. However, the requirement is brought to courts’ attention often in circumstances involving religious marriages, arranged marriages, or forced marriages.

The requirement that couples not be within the prohibited degrees of consanguinity and affinity is regulated by the Marriage Prohibited Degrees Act. The Act outlines that married couples cannot be immediately related to one another nor can they be stepsiblings.

Before a couple can legally be registered as married, they must undergo provincially regulated formalities that are outlined in each province’s respective statutes.

The requirement of not being a partner in an existing valid marriage and being of the age of 16 are self-explanatory requirements.

If you have any questions about the validity of your marriage or you are inquiring about a potential future marriage’s validity, contact our firm today.