Bogus Clergyman Creates Marital Limbo

BY SIMRAN BAKSHI, LAWYER, WISE LAW OFFICE

Imagine waking up one morning to discover that your spouse may not actually be your spouse, as far as the law is concerned.

In what can only be described as "un-frikin-believable", a Peterborough couple has come to learn that the wedding officiator they found on Kjiji was not actually authorized to perform their marriage. To add insult to injury, they realized this only after the would-be officiator completely botched their ceremony (If you're looking for a good laugh, the wedding ceremony has been captured on video).

This strange set of circumstances raises an interesting question: Is a marriage valid in Ontario if it is not properly officiated? To the happy couple's good fortune, the answer appears to be a qualified yes. In accordance with Section 31 of the Marriage Act:

Marriages solemnized in good faith 

31.  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. R.S.O. 1990, c. M.3, s. 31; 2005, c. 5, s. 39 (5).

So what does this actually mean?

First and foremost, the parties must not be "under a legal disqualification to contract such marriage". In other words, they must meet the essential legal requirements of marriage which include capacity, consent, age, monogamy, ability to consummate marriage (yes that still exists!), and non-consanguinity (basically, you can't marry your sibling or anyone else you are closely related to).

Other than that, so long as the parties show good faith and an intention to be married in accordance with the laws of Ontario, their actual non-compliance may be overlooked. So for example, if you fail to get a marriage license because you genuinely believe you do not require one, the validity of your marriage may still be upheld. If however, you deliberately fail to get a marriage license to access a benefits program or deceive your unsuspecting partner, well now that's another story.

It's important to note, a factor that is expressly considered by the Courts is whether the parties represent themselves as a married couple. While this is reflected in the requirement that they "live together and cohabited as a married couple", the Courts do recognize that practicalities may require spouses live separately.

Nonetheless, this couple's marital journey will now require a detour to Ontario Superior Court, where they must apply for an Order to formally validate their marriage. Only then will they emerge from matrimonial limbo in the eyes of the law.

So at the end of the day, all is not lost for the happy couple. While their wedding may have been a "train wreck" (to quote the groom himself), they can rest assured that their marriage will be recognized in Ontario...well eventually.

- Simran Bakshi, Toronto

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