Couple Married Without a Marriage Licence Deemed to Be Validly Married, Ontario Court of Appeal Rules

October 13, 2021

Mark Feigenbaum

In a recent Ontario Court of Appeal decision, the court upheld the trial judge’s ruling that a couple was deemed to be legally married, despite never having obtained a valid marriage licence.

Couple Plans Religious Marriage Ceremony in the US

On August 7, 1998, a man and a woman participated in a religious marriage ceremony at a mosque in Memphis, Tennessee, in the United States.

The husband, a practising Muslim, had attended this mosque for the few months that he resided and worked in Tennessee. He had arranged for the ceremony to take place during the weekend that the wife was visiting him from Canada. The wife had converted to Islam about a year before the ceremony.

Marriage Certificate Issued by Imam

The mosque’s Imam performed the marriage ceremony, which was witnessed by other members of the mosque. The Imam signed the marriage certificate and, following the ceremony, the couple received a marriage certificate with the Imam’s seal.

The marriage certificate stated that they:

“[H]ave been married according to the Quran and Sunnah and are hereby given the rights and privileges of husband and wife according to the Islamic Shariah”.

Couple Fail to Obtain Legal Marriage Licence

Besides the certificate issued by the Imam, the couple never obtained a marriage licence issued by any government entity.

Thus, other than meeting the requirements of having the marriage solemnized by the mosque’s Imam and witnessed by other mosque members, the couple had not complied with the formal statutory conditions of a legal marriage in Tennessee, including the requirements to obtain a marriage licence and register the marriage.

Couple Lives as Husband and Wife

Despite the fact that the couple had not met the legal requirements for a valid marriage under Tennessee law, they stated that they considered themselves to be legally married.

They both gave evidence that they had not known they were not complying with Tennessee’s law. They also noted that since the mosque ceremony they had lived openly as husband and wife for many years in Ontario, had three children together and had purchased a matrimonial home. Additionally, they had identified each other as a legal spouse on government and other official documents.

Couple Separates

The couple separated in 2016 and the wife had applied to court seeking custody of the children, child and spousal support, and equalization.

In response to her application, the husband denied that they had a legal marriage. While he did not dispute that they were common law spouses, entitling the wife to spousal and child support, he objected to being legally married for the purposes of property entitlements under the Family Law Act

Trial Judge Deems Marriage Legal

At trial, the trial judge ruled that the couple’s marriage in Tennessee was deemed to be a valid marriage pursuant to s. 31 of the Marriage Act. That section reads:

Marriages solemnized in good faith

31 If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.”

The trial judge concluded that the criteria for a deemed valid marriage under s. 31 of the Marriage Act had been met for the following reasons:

  1. The couple’s marriage had been solemnized in good faith. There was no evidence of bad faith. There was evidence that both had wanted to marry and had done so in a religious ceremony.
  2. The couple must have intended to follow the Marriage Act because the husband wanted to be legally married and therefore intended to comply with the law. There was no intentional or deliberate non-compliance or indifference as to compliance.
  3. There was no evidence that either the husband or wife was legally disqualified from contracting marriage.
  4. The couple lived together and cohabited as a married couple after the religious ceremony.

Thus, having deemed the marriage to be legal, the trial judge ruled that they were spouses under the Family Law Act. As such, the Family Law Act provisions relating to an equalization of property would apply.

The husband appealed to the Ontario Court of Appeal.

Court of Appeal Deems Marriage to Be Valid

The Court of Appeal set out the two legal questions to be addressed:

  1. Can s. 31 of the Marriage Act apply to validate a marriage solemnized outside of Ontario?
  2. If s. 31 applies to marriages solemnized outside of Ontario, can a court consider the subjective intention of the parties to comply with the Family Law Act?

On the first question, the court answered in the positive. It held that strict compliance with the statutory requirements for a formally valid marriage licence is not required to invoke the deeming validity provisions of s. 31.

On the second question, the court also answered in the positive, stating:

[A] marriage is “intended to be in compliance with this Act” where there is an intention to create a formally binding legal marriage, that is, one that would be recognized for civil, as opposed to only religious, purposes. That intention will not be present where the parties know of the relevant formal legal requirements and deliberately choose not to follow them, notwithstanding that their marriage is recognized as a valid religious ceremony or was solemnized in good faith. But that intention may be found where the parties believe they are marrying for all purposes, any non-compliance was non-deliberate, and where the parties’ subsequent behaviour confirms that they considered themselves, from the time of the marriage ceremony, to have become legally married.”

Applying these principles to the case at hand, the court ultimately dismissed the husband’s appeal, finding no error with the trial judge’s conclusions. The couple’s marriage was therefore deemed to be valid.

Contact Feigenbaum Law for Experienced Advice on Family Law Matters

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.


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