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Who does the divorce/marital property act apply to?

Only legally married people


Definition of spouse under divorce act

Either of two persons who are married to each other


Definition of spouse under marital property act

Married person


Definition of cohabit under marital property act

Live together in a conjugal relationship


Marriage must be

Voluntary and lawful union of two persons to the exclusion of all others


Polygamous Marriage

-Indictable offence in the Criminal Code
-Still part of family law because Canada is so immigration heavy


What are the states a marriage can be?

Valid, void, voidable


NB Marriage Act on validity of marriage

Marriage only valid if parties were legally competent


Moss v Moss

Need voluntary consent of both parties and absence of legal incapacity to marry



-Null and void from inception (as if it never took place)
-Parties in the marriage can have it void as well as third parties who have an interest
-Can be brought after death



-Treated as valid unless and until it is annulled (not void on its face)
-Third party cannot get an order for this
-Cannot be brought after one party has died


Unsoundness of mind

-Alcohol/drug intoxication
-Voidable when to the point the person cannot understand what they are doing at the time of marriage
-Person who can do it: drunk one



-Fear for some other person
-Person who can do it: coerced person



-Voidable if it is a misrepresentation as to what the ceremony is
-Not if you are misrepresented to as to character
-Person who can do it: person misrepresented to



-2 Kinds: 1) Mistake as to identity (who they are) 2) Mistake as to the ceremony
-If mistake about attributes not voidable
-Person who can do it: whoever was mistaken



-Marriage of convenience (ex: arranged marriage)
-If have capacity to consent to marriage the courts will consider it valid



-Depends on the age
-7-12= voidable at option of underage party
-12+ is okay depending on province and requires parental consent


Prohibited degrees

-Marrying close relative
-Void if linear relation
-Other lines are okay


Non-consummation of marriage

-Voidable if not able to consummate
-If you just don't want to not voidable
-Person who can do it: either


What are the sources of family law?

1) Provincial (only applies to its specific province)
2) Federal (applies to marriages in any province)
3) Judge made law (case law)


Provincial Legislation

-Family Services Act
-Marital Property Act


Federal Legislation

-Divorce Act
-Federal Child support guidelines


Under Family Services Act what is a parent?

Mother and father and includes: a guardian and a person who the child ordinarily resides with who has demonstrated a settled intention to treat the child as family


Under Family Services Act Parent does not include

1) Foster parent
2)Prospective adopting parent
3) Natural parent/ adoptive parent whose rights to guardianship have been terminated
4) *natural father of child who is not married to the mother unless he signed birth registration or there has been statutory declaration or parent under ordinarily reside provision


Definition of Spouse under Family Services Act

A person who is married to another by virtue of a legally constituted marriage, except where otherwise defined (broadened for Support/custody/access)


Family Services Act definition of spouse under support/custody/access section

Either of 2 people who:
a) Are married
b) Marriage is voidable but has not been avoided
c) Have gone through a form of marriage in good faith that is void and are cohabitation/have cohabited within the preceding year


Support obligations of spouse, father, and persons who have lived together under the Family Services Act

1) Spouse obliged to support themselves/ other spouse in accordance with need to the extent capable
2) Father obliged to support mother of child in relation to the child in accordance with need to the extent capable
3) Unmarried persons who have lived together have the same obligation under (1) if they: a) continuously live together for no less than 3 years in which one person is substantially dependent; or b) lived with some permanence where there is a child born of whom they are natural parents


Which act deals with Domestic Contracts?

Marital property act


What are the types of domestic contract?

1) Marriage Contract
2) Domestic Contract
3) Separation agreement


Marriage Contract

Contract two people enter before or during marriage while cohabitation in which they agree to their rights and obligations under marriage or on separation including property rights and support

**cannot agree on custody/ access of children