To all:- The posting re "marriage, etc." was copied as sent by someone else. I presume, although different today, the seven years applies to the length of time a man and woman lived together without benefit of clergy. This also affects census records -- I have found it in families being researched. No marriage date existed -- luckily, no children!! Muriel M. Davidson <davidson3542@home.com> Stella Stanger wrote: > Hi, Just another thought on the matter of: > <snip> > "[1015] Age > The minimum age requirement at common law, has, for most practical purposes, > been supplanted by provincial legislation. At common law, derived from > ecclesiastical law, the marriage less than seven years > was void <snip> > I may have misread this "but" > Perhaps this does not mean that the marriage was not of a 7 year old person > - but in fact - > That a "common law marriage - (marriage without benefit of clergy or > licence) that lasted less than 7 years was not considered a marriage at > all. Thus there would be no spousal support, no support for children of the > union, no inheritance rights, no rights to pensions, and no rights to > common property for the female who entered into this arrangement. > I do believe that up until a number of years ago - the persons (female) > involved in this type of arrangement had no legal rights. > Cheers, Stella > > At 12:52 AM 11/30/00 -0500, Muriel M. Davidson wrote: > >Hi all, > >A fellow lister sent me this information which I think may be useful > >to the Canadian searchers. I hope you are just as amazed as I was! > >Happy hunting, > >Lori-Ann > > > >MARRIAGE > > > >page 260 CCH Canadian Family Law Guide [1999] > > > >"Marriage Acts have been enacted in all nine common law provinces > >and in the Northwest Territories and Yukon Territory. The > >Solemnization of marriage in Quebec is dealt with in the Civil > >Code of Quebec." > > > >"[1010] CAPACITY > >In order to contract a valid marriage, a person must have the > >'capacity' to do so; that is, a person must have a legal right > >to enter into the marital relationship. Notwithstanding the > >jurisdiction of Parliament to legislate in respect of capacity, > >or the essential validity of marriage, the field has largely > >been left to be filled by provincial and territorial legislatures. > >In many cases, resort must be had to the common law." > > > >"[1015] Age > >The minimum age requirement at common law, has, for most practical purposes, > >been supplanted by provincial legislation. At common law, derived from > >ecclesiastical law, the marriage less than seven years > >was void. The age of consent was generally considered to be 12 years > >for a girl and 14 for a boy (see the Ontario Law Reform Commission, > >Report on Family Law, Part II, 'Marriage', 1970 pp.36-38) > > > >In Ontario, the Marriage Act, provides, at subsection 5(1), that > >a person 'who is of the age of majority' may lawfully obtain a > >license or be married under authority of the publication of > >banns. Subsections > >5(2), et seq., effectively prohibit the marriage of a > >minor, except where he or she is at least 16 years of age and has > >the consent, in writing, of his or her parent(s) or guardian(s). > >Where the required consent cannot be reasonably obtained, an > >application may be made in accordance with section 6 for an order dispensing > >consent. > > > >Such an order dispensing with consent was granted in Re Fox, [1973] > >1 O.R. 146 (Co. Ct.). The Court found that the consent of the > >father to the marriage of his 16 year old daughter was being > >'unreasonably and arbitrarily withheld'. > > > >In Alberta, the marriage of a female who is under the age of 16 may lawfully > >take place, provided that she is either pregnant or the > >mother of a living child, subsection 16(2) of the Marriage Act. > >Parental consent, or its equivalent, is required ..." > > > >REPORT ON FAMILY LAW > >ONTARIO LAW REFORM COMMISSION > >PART II MARRIAGE > >DEPARTMENT OF JUSTICE [1970] > > > >page 36 > >"(c) Age for Capacity to Marry > >At common law a valid marriage could be contracted if the female > >had reached the age of twelve and the male had reached the age > >of fourteen years. (85) This rule originated as a presumption > >of the canon law as to the age at which a marriage might be > >consummated, a presumption rebuttable on the facts at any given > >age. (86) As applied by common law, the presumptive nature of the > >rule ceased and the age of marriage was fixed and certain. The > >canon law further required that the parties should have reached > >an age of rational consent, which it settled at seven years. > >Below this age marriage was, at canon law, impossible, a purported > >union resulting in a matrimonium non existens. It seems that this additional > >requirement of the canon law did not find acceptance > >at common law. Coke said that he would gave dower regardless of > >the late husband's age at marriage 'albeit he were but 4 years old'. > >(87) Apparently the betrothal or attempted betrothal of children > >who were less than seven years old occurred not infrequently. (88) > >Comyns (89) stated without qualification that by common law persons > >might marry at any age, but more recently, it has been asserted > >that a marriage before the English Age of Marriage Act 1929, (90) > >attempted under the age of seven years, was void ipso jurs. (91) > >Such a question is not likely to arise for a decision today. If it > >were so, it might be noted that the factors which formerly > >motivated infant marriages either are not persuasive or do not > >exist. (92) > > > >A marriage where a party under the age was not devoid of all effect, > >but it was inchoate and imperfect. (93) It was open to either of the > >parties to > >affirm or avoid the marriage on the party under the age of matrimonial consent > >attaining this age. Such election could not be > >made before this occurred, but, once affirmed, the marriage thereafter became > >irrevocably binding. If the parties wished to affirm the > >marriage no new ceremony was necessary; it was sufficient evidence > >of affirmation if, for example, the parties continued to live together. > > > >The power to make laws with regard to marriage and divorce is > >distributed between the Parliament of Canada and the Provincial ... " > >------------------------------------------------------------ > > > >(85) Kenn's Case (1606), 7 Co. Rep, 42b; Arnold v. Earle > >(1758), 2 Lee. 529; R. V Gordon (1803), Russ. And Ry. 48; > >Pugh v. Pugh, [1951] P. 482; R. V. Ball [1857], 18 U.C.Q.B. > >287; Hobson v. Gray [1958], 13 D.L.R., (2d) 404; Mouton v. > >Mouton, [1942], W.N. (N.S.W.) 49; Re An Infant [1963], 6 > >F.L.R. 12. And see D'Anvers Translation of Rolle's > >Abridgement, Vol. I, 700; Co. Litt. 79; Comyas Digest, Baron > >and Femme (5th ed. 1822) 215. > >(86) Pollack and Maitland, The History of English Law [1959] > >Vol. 2, at pp. 390 and 391; Jackson, The Formation and > >Anulment of Marriage [11951], at pp. 19 and 20. > >(87) Co. Litt, 33a. Also, Jackson, ep. Cil. Supra, note 86 > >at p. 20 "In practice, however, the temperal law seems > >widely to have ignored the doctrine that marriages under hte > >age of seven were absolutely void and non-existant". > >(88) Pollack and Maitland, op. Cit. Supra, note 86, at p. > >391. > >(89) Comyns, op. Cit. Suopra, note 85, at p. 215. > >(90) 19 & 20 Geo. 5, c. 36; now new section 2 of the > >Marriage Act, 1949, 12, 13, &14 Geo. 6, c. 76. > >(91) Rayden, Practicer and Law of Divorce (9th ed, 1964), at > >p. 79. See also Cartwright and Lovekin, The Law and > >Practice of Divorce in Canada (3rd ed., 1962), at p. 62, "At > >common law no person under the age of seven could contract > >marriage". > >(92) Pollack and Maitland, op. Cit. Supra, note 86, at p. > >391. > >(93) Co. Litt. 79; B1. Comm., Vol. 1, at pp. 435 and 436; > >Comyns, op. Cit. Supra, note 85, at p. 215. But see Hlliatt > >and Sugden v. Gurr [1812], 2 Phill. Ecc. 16, at p. 19 per > >Sir John Nicholl; "...civil liberties, such as ... want of > >age ... make the contract void ab initiv, not merely void > >able ... ". > > > >Page 37 > > > >" ... Legislatures. By Section 91 (26) of the British North > >America Act, exclusive legislative jurisdiction over > >'Marriage and Divorce' is assigned to the Parliament of > >Canada. By section 92 (12) exclusive legislation > >jurisdiction in relation to 'The Solemnization of marriage > >in the Provinces' as assigned to the Provincial > >Legislatures. In the case of Re Marriage Legislation in > >Canada, the Privy Council decided that this head of power > >operates by way of exception to the powers conferred by > >section 91 (26) (94) On the subject of solemnization, The > >Marriage Act of Ontario is therefore to be construed as > >'exhaustive'. (95) > > > >The supreme Court of Canada has recognized the distinction > >between the formalities of the ceremony of marriage and the > >status or capacity required to contract marriage. (96) > >Formalities fall within the head of 'solemnization of > >marriage' which includes not only the ceremony itself, but > >also the various steps leading to it. Provincial > >legislation relating thereto is intra vives. The question > >of capacity to marry, however, is an area outside provincial > >legislature competence. > > > >A consideration of the pertinent case law dealing with > >provincial legislation in this area (97) indicates that > >provincial enactment's may not effect, and will not be > >construed to effect the capacity of a person to marry. > >The result is that while provincial legislation may validly > >require certain conditions to be fulfilled before the > >marriage may be solemnized, failure to comply with these > >formal requirements will not result in invalidity of the > >marriage unless the legislation specifically requires this > >penalty for non-compliance. (98) > > > >For these reasons, the provisions of The Marriage Act of > >Ontario which deal with the matter of age for solemnization > >of marriage can not be construed as affecting the capacity > >of persons to marry. In addition, they are directed at > >issuers of licenses and solemnizes of marriages rather than > >the parties themselves, and the invalidity is a prescribed > >consequence of failure to comply with the requirements. It > >therefore does not appear that the marriage entered in the > >provisions of the Act would be void. Indeed, in cases where > >the parties were acting in good faith, the marriage might be > >saved explicitly by section 46 of the Act. In any event, > >where the capacity of the parties is concerned, in the > >absence of federal legislation the common law must govern. > >Thus, if to prevent illegitimacy of offspring, a license is > >issued to a female person under twelve ... ". > >------------------------------------------------------------ > > > >(94) [1912] A.C. 330, at p.887 per Viscount Haldane, L.C. > >See also Laskin, Canadian Constitutional Law (2nd ed 1960), > >at p. 978. > >(95) Alspector v. Alspector, [1957] O.R., 454, at p. 462 > >(96) Kerr v. Kerr and Attorney General for Ontario [1934] > >S.C.R. 72; Neison v. Underwood [1936] S.C.R. 635; see also > >Re Marriage Legislation in Canada, [1912] A.C. 380, and > >Gilham v. Steele [1953] 2 D.L.R. 89. > >(97) Hobson v. Gray [1958], 13 D.L.R. (2nd) 404 (Alta, > >S.C.); Ross v. MacQueen [1948] 2 D.L.R. 536 (Alta. S.C.); > >and Colvin v. Colvin [1952] 3 D.L.R., S10 (B.C.S.C.) > >(98) See e.g., Kerr v. Kerr and Attorney General for Ontario > >[1934] S.C.R. 72, where the Supreme Court of Canada upheld > >the Constitutional validity of s. 17 (1) of the Marriage > >Act, R.S.O. 1927 c. 81, which prescibed the prior consent of > >a parent or guardian to the marriage of a minor as a > >condition precedent to a valid marriage. The contents > >required were characterized as essential elements in the > >ceremony itself, rather than as matters related to capacity. > >The decision also upheld the validity of those provisions of > >the Marriage Act declaring that marriages solemnized in the > >absence of the required consents were deemed to be void". > > > > > >Sunshine, Rainbows & Smiles Always :o) > >http://www.dreamwater.com/larc/LarcLandindex.html