Court Discusses Whether A Divorce Is Needed If A Marriage May Not Be valid To Begin With

Written on behalf of Arbesman Hamilton LLP

Most people have been involved in situations where they attempt
to address a seemingly simple issue, only to discover layers of complexity
waiting below the surface. A recent
divorce trial
before the Ontario Superior Court of Justice saw the court
deciding whether or not a man who had been married three times but divorced
only once actually had to get divorced from those previous marriages, or whether
they were never legal marriages in the first place.

How we arrived at
this point

As of the time of the trial, the husband had entered into
three marriages in Ontario. However, out of those three marriages, he had only been
divorced in one. He was before the court asking it to “undo” his second and
third marriages. The court explained that the husband’s circumstances were
unusual and “his
complex marital history requires the court to examine the evidence and first
determine the appropriate legal nature of each of his three relationships in
order to identify the appropriate mechanisms for ending them.”

The court determined that in order to end each of the husband’s
second and third marriages, the court would have to determine if they were
valid in the first place. The court explained, This determination will affect whether the
marriages are to be ended by way of annulment or divorce. If either of (the husband’s)
marriages were invalid from the start because he lacked the capacity to marry,
that marriage is void from the beginning and a decree of annulment may be
issued. If either marriage was valid, then the proper mechanism is divorce.”

The court also added that there was not practical implications
to its eventual finding. Neither of the husband’s wives after his first marriage
were seeking support from him, and he had been separated from each of them for
a number of years.

The husband’s first marriage was in June 1984. They were separated in 1996 and divorced in 2005. During the separation period, the husband married his second wife in February 2001. They were separated in January 2003 (prior to the first marriage’s divorce). The husband married for the third time in August 2008 with the separation occurring on June 30, 2016.

Addressing
each marriage

This was the easiest of the three to address. The validity
of the marriage was not in question, and the subsequent divorce was not an
issue either.

The second marriage was entered into before the divorce of
the first marriage occurred. The wife from the second marriage was believed to
have been living in Buffalo, New York, but attempts to locate her were unsuccessful.
The husband testified that he attempted to get this marriage annulled, and visited
City Hall in Cambridge, Ontario. He testified that he believed the annulment
was processed.

The court said it was not prepared to make an order with respect
to the second marriage, but that a legal determination of it was necessary in
order to sort out the third marriage. The court decided it would make a legal
determination on its validity, but would not issue a decree until the second
wife could be properly served.

The court ruled that it was not possible for him to have entered into his second marriage since he was still married to someone else. The marriage was therefore found to be null and void, with no legal consequences arising from it.

The third marriage, however, was entered into after the first
marriage’s divorce. Since the court had found the second marriage to be null
and void, it had no impact on the third marriage. As a result of these two
factors, this marriage was deemed to be valid. The court granted a divorce in
this marriage.

The end of a marriage is always difficult and
emotional. The experienced and compassionate divorce lawyers at Arbesman Hamilton LLP can
make the process easier by providing outstanding legal guidance and ensuring
your interests and rights are protected so that you can focus on moving on with
your life. Contact