Ashley Donald – November 2019
My Experience: A divorce lawyer gets married in a foreign country.
Believe it or not, divorce lawyers do get married. We get divorced, too, but fingers crossed for me and my newly minted spouse. Perhaps we believe we have an intimate knowledge of how things go wrong, or we are gluttons for punishment.
Either way, I married my dear, sweet, common-law spouse at the Top of the Rock in Gibraltar in October of this year after ten years of living in sin (as my Catholic dad would say).
As a divorce lawyer, we often get asked by new clients: Is my foreign marriage valid in Canada?
Perhaps you eloped to the Top of the Rock in Gibraltar, had a destination wedding and a week-long party in Mexico or you emigrated from your home country to Canada after marrying your spouse.
When getting married in Canada, there is a co-mingling of federal and provincial law. Whether a person has the capacity to marry is a federal matter, whereas the formalities of a marriage is ruled by the province. The formalities are generally the same across the provinces, though the wording may vary from province to province.
Federal legislation says you have the capacity to marry as long as you are not marrying someone who is related to you by “consanguinity” (“by blood”) or adoption. Federal common law says you must have the ability to consummate the marriage, not be married to another person, must consent to the marriage (no duress or fraud) and be of the minimum age.
In Nova Scotia, the formalities of a marriage are as follows:
- You must be married by an authorized person;
- You must have a valid marriage license;
- You must sign the marriage certificate with two witnesses over the age of 16;
- You make the required declarations; and
- The person who solemnizes your marriage must send the completed and signed marriage certificate to the issuer within 48 hours of the completion of the ceremony.
To get a marriage license in Nova Scotia, you must be 19 years of age or over the age of 16 and have parental consent.
If you were married in Canada and met the requirements of the federal and provincial laws, your marriage is valid.
What about other countries?
The law in Canada about foreign marriage follows a maxim called “locus regit actum”. In English, the translation is “the place governs the act”. In short, the law of the place where the marriage occurred governs whether the marriage is valid.
So the first question then, is not is your marriage valid in Canada, but is your marriage valid in the country where you were married? If the answer is yes, then your marriage is most likely valid in Canada.
When marrying abroad as a Canadian, it is important to check and re-check the legal requirements for marriage in that country or state. Some places are easier than others. For example, in Spain, you must be a Spanish citizen, marrying a Spanish citizen or a resident for two years before you can apply for a marriage license.
In Gibraltar, however, which is part of the United Kingdom, foreigners can get married by providing the necessary documents in advance, presenting the original documents to the Registrar before 10:30 a.m. no later than the day before the ceremony, and providing proof of spending one over-night in Gibraltar the night before or night of the ceremony. Easy Peasy (you see why we chose Gibraltar).
While researching how to elope to a foreign country I generally found most place will at least require the following from you and your spouse:
- Long form birth certificate;
- Passport;
- Consular certificate of no-impediment (stating you each aren’t married to another, not related by blood, for example);
- Proof of name change, death certificate or divorce certificate if applicable; and
- Payment of fees.
Some countries have much more invasive requirements like blood tests or chest x-rays (Mexico). You may need to get your birth certificate, passport, and certificate of no-impediment translated to the language of the country you are planning to get married in or have the documents confirmed by the Canadian consulate in that country.
There are a few instances when a marriage may not be valid in Canada. The most common example is if a marriage is not contracted between two people, meaning the marriage is potentially, or actually, polygamous.
If a marriage is not valid, is void or voidable can impact whether the Nova Scotia Supreme Court will apply the Matrimonial Property Act. For more information on void and voidable marriages, check out my next blog post.
If you have questions about the validity of your foreign marriage, reach out to lawyer at MDW Law to discuss the impact on your rights and obligations.