VALIDITY OF MARRIAGE
For a marriage to be considered valid, it has to possess essential validity and formal validity. Essential validity relates to the legal capacity of the parties to marry, whereas formal validity relates to the ceremonial requirements for a marriage to be considered valid. In Canada, the essential validity of a marriage is encapsulated in Section 91(26) of the Constitutional Act, 1967 whereas, the formal validity is a provincial matter that varies from one province to another. Historically, marriage was considered valid if it was between a man and a woman. However, changes have been occasioned and marriage is now defined as the lawful joining of two persons excluding all others.
Section 2 of the Canadian Civil Marriage Act defines an essentially valid marriage to include marriage between two persons of the same sex, it stipulates the minimum age of marriage to be 16 this differs with the Korean context whereby the age of consent is 20 years for Koreans and 19 for international members and requires marriage to consist of an enlightened and free consent. In M.A. v. B.B 2018 ONSC 4582, 12 R.F.L, Cullity J held that consent is key to essential validity, and marriage consent cannot be obtained by the proxy. This differs from the situation in Korea because males over 18 years and females over 16 years may marry with the guardian’s or parent’s consent.
In Canada, same-sex marriages are allowed, however differs from other jurisdictions and countries like Korea where same-sex marriages are prohibited. In Halpern v. Toronto (2002), Blair J held that outlawing same-sex marriages is a violation of the Charter of Human Rights. He held that marriage should be viewed from a broader perspective as opposed to the traditional view whereby the sole purpose of marriage was procreation. In the current world, there is more to marriage than procreation, there is: mutual support and care, shared social and physical activities, moral and intellectual stimulation, and psychological and economic interdependence. Further, Section 2 of the Civil Marriage Act states that for civil purposes, marriage is the lawful joining of two persons excluding all others. Also, Section 4 of the Civil Marriage Act states that marriage is not void or voidable by reason that spouses are of the same sex.
As much as same-sex marriages are legalized in Canada, polygamous marriages are prohibited. In Canada, marriage is a monogamous institution and section 293 of the Criminal Code criminalizes polygamy and terms it as an indictable offense. The Chief Justice laid out the justification for a prohibition of polygamous marriage as, such marriages increase the poverty rate, women in polygamous marriages are likely to suffer from domestic violence, sexual abuse, psychological and physical harm and competition from co-wives is likely to lead to mental health issues and depressive disorders. Children in polygamous relationships are also likely to suffer imminent harm as they may be exposed to behavioral, emotional, and physical problems. In Canada, marriages, where one of the party marrying is already in an existing marriage relationship, is considered void. This is because marriage is considered as a lawful joining of two persons to the exclusion of others.
In Canada, a marriage may be annulled on the ground of impotence if the following conditions are met: (a) the existed prior to the marriage, the incapacity pleaded must be such as to render intercourse impractical, the incapacity may stem from a ‘physical or mental or moral disability, and (d) the sterility in incurable.
Both in Canada and Korea, marriages are prohibited on grounds of affinity and consanguinity, for two people to be married they must not be related by blood or related by marriage. For instance, a father should not marry his daughter in law. Such marriages are prohibited as they may lead to a child with deformities being born and because the purpose of marriage is to encourage social interactions and as such marriage within the same family are prohibited.
In conclusion, for a marriage to be considered essentially valid in Canada, one must consent freely and deception or mistake does not invalidate a marriage, one must be sixteen years and above and two people of the same sex can get married. However, in Korea homosexual marriages are prohibited and the age of consent is 20 years for Korean nationals and 19 years of international persons.