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Are We Married?

Andy Hayher

In the recent decision of Vo v. Vo, the Honourable Mr. Justice J.T. McCarthy of the Court of King’s Bench of Alberta dealt with the issue of whether or not a couple was married or not. The parties were both born in Vietnam but residing in Canada. In 1997 they travelled from Canada to Vietnam to participate in a traditional marriage ceremony. However, no paperwork for the alleged marriage was ever obtained in either Vietnam or Canada. The Wife applied for a divorce and division of matrimonial property. The question for the court was whether or not the parties were validly married in Vietnam. The parties lived together for over a decade, they had two children and they held themselves out to be married to friends and strangers.

The court held that the validity of the marriage is determined by two sets of laws. First the lex loci celebrationis, which is the law of the jurisdiction where the wedding took place applies to the actual event, while the lex domicile, which is the law of the jurisdiction on which the parties are resident, applies to their capacity to enter the marriage. The Alberta Court of Appeal has characterized the former as being “formal validity” and the latter as being known as “essential validity.” In Nafie v. Badawy, the Court of Appeal opined: “Two elements must exist for a marriage to be valid: ‘formal validity’ relating to the correct procedure in the place where the parties were married, and ‘essential validity’ relating to the capacity of the parties as determined by the laws where they were domiciled before marriage. In Vo, the difficulty that the Court had was that the evidence about what constituted a valid marriage in 1997 in Vietnam was not before the court. Instead, Mr. Justice McCarthy had to rely on the common law to decide whether or not to presume that the marriage was validly conducted.

Mr. Justice McCarthy went on to discuss the jurisprudence as it relates to the determination of a valid marriage. Particularly, he relied on the Supreme Court of Canada’s decision in Porteous v. Dorn where Mr. Justice Dickson held that if persons live together as man and wife for a length of time and in the circumstances have acquired “local repute as married,” a presumption that they are legally married may arise. That presumption can only be rebutted by cogent evidence to the contrary. A similar position was taken by the Ontario Supreme Court in Lozinko v. Bazylok, where it was held by Justice Goodman that where there is evidence of a ceremony and the parties cohabit afterwards and the broader public understands them to be married, it will be presumed that they are married.

In Vo, the Husband argued that the ceremony was for show and put together by the families after it was realized that Ms. Vo was pregnant. To support this position, he pointed to tax returns that identified the parties as “common-law partners.” However, Mr. Justice McCarthy did not accept Mr. Vo’s position. Applying the common law, he ruled that they had a valid marriage in Vietnam and were married for the purposes of the Divorce Act and Matrimonial Property Act.

2022-09-12T16:28:34+00:00December 11, 2018|Family Law|
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