Marriage and the Formation of Family Relationships
Core concepts
A candidate must be able to explain the legal requirements for a valid marriage: capacity (age, prior undissolved marriage, prohibited degrees of consanguinity and affinity), consent (free and informed, absent duress, fraud, or incapacity), and formalities (licence, solemnization, registration, witnesses). Distinguish void marriages (never legally valid, e.g. bigamy, prohibited blood relationship) from voidable marriages (valid until annulled, e.g. lack of consummation, duress, mental incapacity at the time). Understand common-law and customary relationships, cohabitation, and how provincial or territorial statutes extend limited rights to unmarried partners.
Traps in questions
- Assuming religious ceremony alone creates a legal marriage; registration and licensing formalities often control.
- Confusing void and voidable consequences for property and support.
- Overlooking that capacity is assessed at the time of the ceremony, not later.
- Forgetting that a prior marriage believed dissolved but not actually dissolved makes a later marriage void, even if the party acted in good faith (though a remedy such as a putative-spouse claim may exist).
- Mixing up affinity (relationship through marriage) with consanguinity (blood).
Rule of thumb
Ask three questions in order: capacity, consent, formality. If any fails, the marriage is defective; then decide whether the defect makes it void ab initio or merely voidable.
Worked example
A couple marries in a religious ceremony without a licence; the officiant is not registered. The marriage is likely void for failure of formalities, not merely voidable. If instead one party was already married, the marriage is void for lack of capacity. If one party was severely intoxicated and lacked capacity to consent, the marriage may be voidable at that party's election.