For those not in a relationship, Valentine's Day may bring longing for that knight in shining armour or whirlwind romance. Before jumping in headfirst, beware of rash decisions (and COVID) - getting married means the Family Law Act applies to you, whether you have planned your wedding for years or met in Vegas the night before. Here's how the Family Law Act applies to relationships with a less conventional backstory.
- Platonic relationships
Remember telling your best friend that you'll marry them if you're both single at 40? Maybe you won't have a red-hot sex life or a fairy-tale romance, but you'll have your bestie beside you for life. However, before you say "I do", know that marriage creates a spousal relationship under the Family Law Act, regardless of whether or not there is a sexual component. The law recognizes that spousal relationships are as varied as the people in them. A couple's sex life may be a key component of their marriage, or their relationship may be based on platonic companionship. Others may fall somewhere in between.
Some couples have tried to annul their marriages for a variety of reasons. However, the ability to annul a marriage is greatly restricted. Annulment means couples do not have to go through the separation and divorce process and are simply back to square one before the marriage. The success of annulling a marriage depends on the couple's intentions and the understanding of both parties that they are getting married. If a platonic marriage was intended, then the absence of sex does not constitute grounds for annulment - failure to consummate a marriage requires a practical inability to consummate, whether physical or physiological, rather than simply a persistent refusal to engage in sex. If you want out of your platonic marriage, separation and divorce (rather than annulment) is likely the way to go.
- Spur-of-the-moment weddings
Maybe your knight in shining armour appeared before your eyes in the bar, but when you took off the beer goggles the next morning, you already signed the wedding papers at the drive-in chapel the night before. You may be eligible for an annulment on the basis that you were not capable of understanding the consequences of your actions – in short, that you were too drunk to understand that you were entering into a marriage.
Case law suggests that to have "capacity to marry", you must have a capacity to understand the nature of the contract, and the duties and responsibilities which it creates. This means you must have some understanding that you want to live with the other person, that it will affect your future, and be a mutually supportive relationship until death or divorce. This is a low bar, however, so think twice before getting married on a whim - if you want to end the marriage, annulment may not be available to you and divorce may be your only option.
- Multiple spouses
It's possible for someone to be in more than one spousal relationship even if they are only married to one person. People in polyamorous relationships may have multiple spouses if they live in marriage-like relationships with multiple people, whether or not they are married.
Open and honest communication, however, is not a prerequisite to multiple spouses. A married person may have a spousal relationship with their spouse, but also have a marriage-like relationship with another person (who may also have children) with whom they are having an affair. This can lead to complicated divorces in which multiple spouses have a claim for child support, spousal support, or property division against their mutual spouse. While scorned spouses may wish the marriage never happened, annulment is not available – though perhaps they will wish that it was!
If you'd like to read more about annulments, check out the following cases:
- Grewal v. Bal, 2020 BCSC 1588
- C v. L. 2003 BCSC 1461
- SZ v. XJ, 2020 BCSC 1336
- CMD v. RRS, 2005 BCSC 757
Whether or not your relationship fits into one of the categories above, contact our office for legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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