Processing spouses and common-law partners: Assessing the legality of a marriage

The federal and provincial governments share constitutional power with respect to marriage (and divorce). The federal government has broad legislative responsibility for divorce and for aspects of capacity to marry or who can legally marry whom. The provinces are responsible for laws about the solemnization of marriage.

All provincial and territorial marriage acts:

• provide for religious and civil marriage ceremonies
• require witnesses to a marriage ceremony
• identify officials or individuals authorized to solemnize a marriage
• set minimum age requirements for marriage

Marriages that take place in Canada must meet federal requirements with respect to the right to marry and provincial requirements with respect to solemnization. The choice of whether or not to marry is constitutionally protected.

Factors to consider

• Requirement to be married before submitting the application
• Minimum age for marriage in Canada
• Not related by consanguinity (blood relatives)
• Marriage must be valid where it took place and under Canadian law
• Marriage where one or both parties are not physically present (e.g. proxy, telephone, fax, Internet)
• Polygamy
• Legality of foreign divorces

Requirement to be married before submitting the application

IRCC cannot require couples to marry in order to immigrate. However, if they are not married, they must be common-law partners. There is no provision in IRPA for fiancé(e)s or intended common-law partners. The expectation is that a Canadian or permanent resident and a foreign national will get married or live together and establish a common-law relationship before they submit sponsorship and immigration applications.

Minimum age for marriages that took place in Canada

For marriages that took place in Canada on or after June 19, 2015

• the minimum age for marriage is 16 (as per section 2.2 of the Civil Marriage Act)
• parental consent must be provided when one or both spouses are between 16 years old and the age of majority of the province or territory where the marriage took place

The age of majority is 19 in

• British Columbia
• Newfoundland
• Nova Scotia
• Nunavut
• the Northwest Territories
• the Yukon

The age of majority is 18 in

• Alberta
• Manitoba
• New Brunswick
• Ontario
• Prince Edward Island
• Quebec
• Saskatchewan

For marriages that took place in Quebec after June 8, 2016, the marriage must have been authorized by a court in Quebec if one or both spouses are between 16 and 18 years of age. Registration of the marriage in Quebec is acceptable proof that the requirements were complied with.

Once an underage spouse turns 18, they can be considered to be a member of the family class. This applies even if the spouse married at a younger age. For example, a person who was married at 16 is eligible to be sponsored as a spouse when they turn 18.

Not related by consanguinity (blood relatives)

To contract a valid marriage, a person must have the “capacity” to do so. An element of capacity is that two people are not blood relatives, i.e. related by “consanguinity”.

The federal Marriage (Prohibited Degrees) Act prohibits marriage between persons related lineally by consanguinity or adoption, and between siblings, whether brother and sister by whole blood (same parents), half-blood (one common parent) or by adoption.

The following relationships, whether by consanguinity or adoption, fall within the prohibited degrees. In Canada, applicants may not marry their:

• grandfather/grandmother
• father/mother
• brother/sister
• half-brother/half-sister
• son/daughter
• grandson/granddaughter
• other lineal relatives, such as great-grandparents/great-grandchildren

In Quebec these relationships are repeated in the Civil Code.

Marriage must be valid where it took place and under Canadian law

A marriage that took place abroad must be valid both under the laws of the jurisdiction where it took place and under Canadian federal law in order to be considered legal for immigration purposes. A marriage that is legally recognized according to the law of the place where it occurred is usually recognized in Canada, but the onus is on applicants to prove that their marriage is legal.

Marriages performed in embassies or consulates must meet the requirements of the host country in which the mission is located. A diplomatic mission or a consular office is considered to be within the territory and jurisdiction of the host (receiving) state. Therefore, a marriage performed in an embassy or consulate must be legally recognized by the host state in order to be valid for Canadian immigration purposes. An applicant who married in an embassy or consulate must satisfy an officer that all of the requirements of the host country with respect to marriage have been met, including whether the host country recognizes marriages performed in diplomatic missions or consular offices within its jurisdiction. Exceptions to this requirement are rare.

The most common impediment to a legal marriage is a previous marriage that has not been dissolved. Marriages are dissolved through annulment, divorce or the death of one of the parties.

What to do if a marriage is not legal where it occurred

Some marriages may not be legal where they occurred (e.g. defect in capacity [who can marry whom], marriage in an embassy is not recognized by the host country, religious prohibitions, form of ceremony not permitted), but the marriage would otherwise be recognized in Canada. Officers should explain to the applicant that they do not qualify as a spouse because their marriage is not legal where they married, but that they might qualify if they marry in another jurisdiction where their marriage would be legal.

If re-marriage in another jurisdiction is not feasible, and if the relationship between the sponsor and applicant is genuine and the relationship meets the requirements of either common-law partner or conjugal partner, they may be processed as such. Consult the applicant before processing their application in another category.

If applicants qualify as common-law or conjugal partners, explain that their marriage will not be recognized as legal in Canada. If they wish to be recognized as a married couple, they will have to marry in Canada. If they are conjugal partners, explain that they must live together in a conjugal relationship for one year before either can exercise any rights or privileges associated with common-law status.

The applicant must meet the definition of common-law partner or conjugal partner at the time the sponsorship and permanent residence applications are submitted, i.e. for common-law partners, they must have lived together continuously in a conjugal relationship for at least one year, and for conjugal partners, they must have been in a conjugal relationship for at least one year.

If the applicant is unwilling to be considered as a common-law or conjugal partner, or is unable to provide satisfactory evidence of a conjugal relationship, the application should be refused.

Marriage where one or both parties are not physically present (e.g. proxy, telephone, fax, Internet)

Proxy, telephone, fax, Internet or similar forms of marriage where one or both parties are not physically present are excluded relationships in all temporary and permanent immigration programs [R5, R117(9)(c.1), or R125(1)(c.1)].

Proxy marriage is defined as a marriage in which one or both of the participants are not physically present, but they are represented by another person who attends the solemnization. A telephone, fax or Internet marriage is a marriage in which one or both of the participants are not physically present at the same location, but participate in the solemnization of the marriage by telephone, fax, Internet or other means (e.g. Skype or FaceTime). It is possible that someone other than the persons getting married participates on their behalf as well as over the telephone, by fax, Internet or other means.

Applications received by IRCC before June 11, 2015, from persons married by proxy, telephone, fax or Internet are not subject to this exclusion.

To be considered physically present at a marriage ceremony, both parties (e.g. sponsor and spouse or principal applicant and accompanying spouse) must have participated in a wedding ceremony in person.

Exemption – Canadian Armed Forces personnel

An exemption exists for members of the Canadian Armed Forces who, due to travel restrictions related to their military service, were not present at their marriage ceremony, whether or not that marriage was conducted and registered in a foreign jurisdiction where it is legally valid.

In the case of a marriage where one or both parties are not physically present, officers should identify the sponsor’s employer on the IMM 5532 (Relationship Information and Sponsorship Evaluation form) to determine whether he or she is a member of the Canadian Armed Forces. If it is confirmed that the sponsor is or was a member of the Canadian Armed Forces, the officer should send a letter requesting submissions or conduct an interview with the applicant to determine whether travel restrictions related to military service caused him or her to be incapable of being physically present at the marriage ceremony. If so, an exemption will be applied and the officer will continue processing the application as a spouse.

Polygamy

Polygamous marriages are not legal in Canada and are an offence under the Criminal Code of Canada.

A spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage [R117(9)(c)(i)]. This regulation prohibits a second (or third, etc.) wife from being recognized as a spouse within the family class and provides that only the first marriage may be recognized for immigration purposes.

For the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous marriage in Canada. Common law imparts that a polygamous marriage can be converted into a monogamous marriage provided that the couple live together in a monogamous relationship from the time of arrival in Canada. This conversion can be done if the couple states their intention to convert their marriage to a monogamous one, followed by some factual evidence that they have complied – usually by divorcing the other spouses and/or by a remarriage in a form that is valid in Canada.

The decision to refuse an application must be based on the balance of all evidence, and not solely on the fact that the applicant did not obtain a divorce. The parties must understand that refusal to provide such evidence may result in the refusal of their application.

A polygamous second (or third, etc.) marriage cannot be converted to one of monogamy. If a husband wishes to sponsor a wife other than his first as his spouse, he must divorce his other wives and remarry the chosen wife in a form of marriage that is recognized as valid in Canada.

When a sponsor and applicant have been practising polygamy and there are children from several spouses, caution the sponsor and the spouse being sponsored that other spouses will not be eligible for immigration to Canada even if their respective children are sponsored. Officers must explain that separation of children from their mothers will likely be permanent, and counsel the sponsor and applicant to consider the consequences of that separation on the children. If the children nonetheless are sponsored, and if one of these children subsequently sponsors their respective mother, explain to the mother that she will have no spousal status and related legal protection in Canada and that she will not be eligible for support or other benefits that also flow from marriage under Canadian law.

The prohibition against polygamy in the Regulations, and the lack of recognition of all spouses except the first, cannot be avoided by processing a second spouse as a common-law partner. Legally, it is not possible to establish a common-law relationship that meets the definition of such in terms of conjugality, where one or both parties are still living in a pre-existing conjugal relationship. The notion of conjugality has within it the requirement of monogamy; therefore, it is only possible in law to establish a new common-law relationship after a person is either divorced or separated from the spouse or common-law partner and where they have convincingly formed the intention not to continue with that previous relationship.

An already existing marriage, uninterrupted by separation, divorce or death, is a barrier that cannot be overcome when assessing a second spouse as a common-law partner. However, where such a barrier is removed (i.e. a first wife is subsequently divorced or is deceased), a husband and second wife could choose either to remarry, or could potentially meet the definition of common-law partner (i.e. where a husband was separated from a first wife and lived with a second wife in a bona fide conjugal relationship for one year after the separation from a first wife). Because a subsequent marriage (where the first is continuing) is not valid in Canadian law, persons in such a scenario would be considered as single in law and they would have to remarry to be considered married under Canadian law.

Legality of foreign divorces

Previously married applicants must be legally divorced or their marriage must be legally annulled before they may remarry. In addition to proving that their subsequent marriage is legal, they must first prove that their divorce was legal. If the legality of a marriage or divorce is in doubt, consult the visa office responsible for the country where it took place, providing all available documents and information and an explanation of the concerns.

Officers may need to look closely at foreign divorces to determine if sponsors or applicants were, or are, legally free to marry again. The fact that a marriage licence was issued, or that a couple has remarried, is not proof that a divorce was legal where it occurred, or that it would be recognized as legally valid in Canada.

A foreign divorce is without effect if it was obtained by fraud or by denial of natural justice.

The federal Divorce Act of 1985 governs the recognition of foreign divorces. It specifically provides for the recognition of foreign divorces where the divorce was granted after February 13, 1986. These divorces are valid in Canada if either spouse was ordinarily resident in the foreign jurisdiction for one year immediately preceding the application for the divorce.

The Divorce Act also preserves common-law rules respecting recognition of foreign divorces. For example, Canadian courts may recognize foreign divorces when:

• they are granted by a court in a country where neither spouse was ordinarily resident, but where the decree is recognized by the law of that country and where one or both were ordinarily resident at the time of the divorce. For example, a party living in California obtains a divorce in Nevada. If California recognizes the Nevada divorce, it is valid in Canada.
• either party can show that, at the time of the divorce, they had a real and substantial connection with the foreign jurisdiction, e.g. they were born in that country, had family there, regularly travelled to and spent time there, and/or owned property or conducted business there. Such factors indicate whether the court in that country had the jurisdiction to hear the divorce when neither of the parties was ordinarily residing there for a year preceding the divorce. If the real and substantial connection is made, and that party obtains a legal divorce in that country, it is valid in Canada.

It is also possible that a divorce granted by a court in a country where neither spouse was ordinarily resident but that is recognized by a second country (other than Canada), where one or both can show that they had a real and substantial connection to that second country at the time of the divorce, would be valid in Canada.

When neither spouse was ordinarily resident in the foreign jurisdiction for one year immediately preceding the application for the divorce, it is possible that neither the divorce nor any subsequent marriage may be recognized for the purpose of Canadian law. To determine whether a foreign divorce is acceptable, weigh all evidence, including whether the couple were originally from, and were married in the foreign jurisdiction where the divorce was granted.

Jurisprudence pertaining to what constitutes a “real and substantial connection” has been challenged in court. In the absence of fraud, misrepresentation or any other wrongdoing, there is a tendency to defer to the foreign jurisdiction and to recognize foreign divorces as valid. For more information see Lau v. Canada (Citizenship and Immigration), 2009 FC 1089 and Amin v. Canada (Citizenship and Immigration), 2008 FC 168.