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

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