(Ontario Real Estate Source)
By Brian Madigan LL.B.
The legal responsibility for marriage is divided between the federal and provincial governments. The province is responsible for the “solemnization of marriage”.
What does that mean?
There is a Marriage Act in Ontario. Essentially, that means the procedural rules related to marriage.
In Ontario, you must be 18 years of age, which is the age of majority, or 16 years of age with the consent of both parents in order to marry. There are two routes, either through the issuance of a marriage licence or the publication of banns, a rather ancient and religious authorization. Over time, the role of marriage in society has become more civil and less religious.
The Marriage Act states:
“No person may solemnize the marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason”.
It is rather interesting that permanent lack of capacity due to the failure to develop to maturity for any medical reason, or the loss of capacity due to physical injury is dealt with in the same section as “drugs and alcohol”.
Naturally, the candidate must be free to marry, that is, either no prior marriages, or any such marriage would have been dissolved (possibly by divorce) annulled, or ended due to the death of the spouse. These “facts” all need to be proved prior to the issuance of a marriage licence, or placed upon inquiry by the publication of banns.
There must be at least two witnesses present at the ceremony. A register is then signed by the married couple and the two witnesses. Whether the marriage takes place civilly or in accordance with the customs of a church or religious congregation, the “register” is the property of the Province of Ontario. The person solemnizing the marriage, then issues a “marriage certificate”, which constitutes official evidence of the marriage.
The old common law action for “breach of promise” was abolished in Ontario on 1 August 1978.
There is an important provision which deals with property. This provision means any property. So, that includes both real and personal property.
See, section 33:
“Recovery of gifts made in contemplation of marriage
33. Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift.”
It is quite common for couples to live together prior to marriage. It is also quite common for them to purchase a house or condominium while they are still “living together”.
This section of the Marriage Act seems to have little to do with the solemnization of marriage. Nevertheless, it does still fall within the jurisdiction of the province which is “property and civil rights”.
This provision simply eliminates the consideration of “fault” in the determination of the entitlement to conditional gifts of property in contemplation of marriage.
It does not deal with entitlement. It simply makes matters “no-fault”, which is a principle enunciated in the Family Law Act and the Divorce Act.
It is a provision that real estate agents should consider, particularly if they are providing advice to young couples purchasing property together.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com
