I am increasingly seeing cases where parties have a religious marriage ceremony, but where there is no “civil” marriage.
By “civil” marriage, I mean a marriage within the meaning of the Marriage Act of Ontario. That Act allows for marriage ceremonies to be conducted by specified classes of persons and then for a marriage certificate to be issued.
In other words, the client has gone through a religious ceremony but did not get a marriage certificate.
So what happens if the marriage goes sour? Does the client have the same rights as a person who has a marriage certificate under the Marriage Act? In particular, can the client apply for a property division under the Family Law Act.
The answer is “generally no.” To be married for the purposes of the Family Law Act, you have to have a marriage certificate. You have to comply with the Marriage Act. In most cases, you will not be eligible for a division of property if you do not have a marriage certificate. See the Court of Appeal’s decision in Debora v. Debora 1999 CarswellOnt 5.
There are exceptions to this general rule however. If a person honestly believes that the religious ceremony was all that was needed for a valid marriage, they may be able to rely on the good faith exception under section 31 of the Marriage Act, which states:
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.
An example of the operation of this section is Isse v. Said 2012 ONSC 1829 Ontario Superior Court of Justice, where Justice Broad found that parties who married in an Islamic religious ceremony had attempted in good faith to comply with the Marriage Act. They did not realize that there was a further step needed – obtaining a marriage certificate under the Marriage Act. This meant that the parties were “spouses” for the purposes of the Family Law Act, and, either spouse could apply for a property division.
In my experience, most cases are unlike the Isse v. Said case. In other words, most clients are aware of the need to obtain a marriage certificate, and have made a deliberate decision not to get one, often because the client is not 100% committed to the relationship and is not sure that he / she wants to be married “for real.” Section 31 of the Marriage Act does not apply to such persons; such persons will not be considered spouses for purposes of the Family Law Act.