Following the breakdown of a relationship, dividing the assets, property, and debt the parties acquired during the relationship is an important step in the separation process. This can become a source of serious conflict. 

Whether the couple is married is relevant in this context because the rules for property division are different depending on whether the partners are married or in a common-law relationship. This article looks at these rules, along with the recent decision of the Court of Appeal for Ontario in Lalonde v Agha, in which the parties disagreed on whether they were legally married following a ceremony in Memphis, Tennessee.

Property division for married vs. common-law couples

Under Ontario’s Family Law Act (FLA), married couples are to equally share any property and assets acquired by either spouse during the marriage, with some exceptions. This is called equalization of net family property.

The situation is different for common-law couples. They are not covered by the equalization provisions of the FLA and can only seek equalization in some limited circumstances. Common-law partners may have rights, though, for example, if one partner contributed to property owned by the other. Common-law partners may enter into a cohabitation or separation agreement that sets out how property is to be divided.

What constitutes a marriage under Ontario law?

The Marriage Act (Act) sets out what constitutes a marriage under Ontario law. In order to have a legally valid marriage, in addition to requirements relating to who can marry (such as age restrictions), the ceremony must take place in accordance with particular requirements. For example, in Ontario, the partners need a marriage licence and the official who performs the ceremony has to be authorized by the government.

However, section 31 of the Act operates to validate a formally invalid marriage in some circumstances, such as where the officiant was not authorized or there was no licence, if:

  • the marriage was solemnized in good faith;
  • the marriage was intended to be in compliance with the Act;
  • the parties were not under a legal disqualification to contract marriage; and
  • after such solemnization, the parties lived together and cohabited as a married couple.

Parties participate in a religious marriage ceremony at a mosque in Memphis

In 1998, the parties participated in a religious marriage ceremony at a mosque in Memphis. The man, a practising Muslim, worked in Tennessee and arranged for the ceremony to take place while the woman was visiting him from Canada. He believed the ceremony was necessary to permit the parties to engage in sexual relations, as pre-marital sexual relations were considered sinful under Islamic religious law. She had converted to Islam about a year before the ceremony.

The mosque’s Imam performed the marriage ceremony and signed the marriage certificate, but no marriage licence was issued by any government entity and the marriage was not registered. The parties did not know that they were not complying with the requirements of Tennessee law.

Wife sought equalization of net family property

Until they separated in 2016, they lived openly as husband and wife for many years in Windsor, Ontario, where they had three children and purchased the matrimonial home.

The wife sought custody of the children, child and spousal support, and equalization of net family property. The husband claimed that there was no legally valid marriage and, therefore, the net family property could not be equalized.

Court of Appeal decides that section 31 of the Act can apply to validate a marriage solemnized outside of Ontario

Justice of Appeal Roberts held that section 31 of the Act, which deems formally invalid marriages to be valid in some circumstances, does apply to persons married outside Ontario but domiciled in Ontario when the Act is invoked.

While the law of the place where the marriage is celebrated determines whether the marriage is valid (in this case, Tennessee law), that is a different question from whether it can be deemed legally valid. It is the law of the place where the parties reside that applies to the question of whether the marriage will be legally validated, notwithstanding its formal irregularities.

The marriage is deemed valid because the parties intended to enter into a valid, legally recognized marriage

Justice of Appeal Roberts looked at whether the parties had an intention to create a formally binding legal marriage, that is, one that would be recognized for civil, as opposed to only religious, purposes. Conversely, it was relevant whether there was deliberate non-compliance with the formal requirements of the law in Ontario.

Her Honour observed that:

Other than the failure to obtain a marriage licence, the parties complied with all the other statutory requirements for a valid marriage under Tennessee or Ontario law. They were married by an Imam. There were witnesses present at the ceremony. They had the capacity to enter into the marriage and consented to do so. Most important, neither of them knew that a marriage licence was required to create a formally valid marriage. In other words, they believed that they had entered into a legally binding marriage that would be legally binding anywhere.

In addition, the other requirements of section 31 of the Act were satisfied. For example, the parties lived as a married couple following the religious ceremony. As a result, the court deemed the marriage valid. Therefore, the parties were married for the purposes of the FLA’s property equalization provisions.

Contact NULaw in Toronto for Guidance on the Division of Property and Assets

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of family law issues and regularly provide honest and practical legal advice on these matters, including all types of separation issues. 

Obtain experienced legal guidance from family lawyer Lex Arbesman and ensure that you receive a fair division of your property and assets. Our goal is to understand your unique situation and protect your financial future during what can be a challenging emotional time in your life. Contact us online or at 416-481-5604 to book a consultation.

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