Woman Acquiesced to Sham Marriage for Fear of Losing Her Job – Was She Under Duress?
In a blog post from a few weeks ago, we talked about what it takes to get a marriage annulled. One of those grounds is “duress” – which has been defined by the Ontario Court of Appeal in a case called Berdette v. Berdette as involving a “coercion of the will” where the person receiving the pressure has no realistic alternative but to submit to it, and no realistic ability to freely decide on his or her own.
The bounds of what constitutes duress were considered in a recent B.C. case called Kaur v. Jhamb, where a woman applied to the court to have her purported marriage to a man annulled. The man was recently arrived from India and was a relative of a business owner for whom she had recently started working as a hairdresser in Canada.
The business owner had suggested to the woman that could marry the man, who could then be sponsored to immigrate to Canada as a permanent resident. Although it was posed as a suggestion, the business owner also intimated that the woman’s employment in his business would only be secure if she acquiesced to it.
The woman gave evidence that this so-called “suggestion” caused her stress because she was neither ready nor willing to be married, but also did not want to lose her job. She asked the business owner to be allowed to think about it for a day. She ultimately agreed; according to her evidence, she felt duress because of the direct threats to the security of her employment.
Soon after she and the man underwent a civil marriage ceremony attended by a few of the business owner’s friends and family. Immediately after, she went home alone and has not seen the man since. The marriage was not consummated.
Still, the woman was fired from her hairdressing job shortly afterwards. She believed that she was let go because she did not go through with the religious ceremony that would finalize the marriage to the man. As the court explained:
The parties belong to the Sikh religion and are Punjabi by ethnicity. According to the Sikh religion, in addition to a civil marriage ceremony, it is essential that there be a religious ceremony in front of the holy book, Shri Guru Granth Sahib, prior to cohabitation and/or consummation of the marriage. No such religious ceremony took place.
In considering whether to grant an annulment, in this case, the court noted that in law, the traditional test for duress includes “economic duress”. Here, the evidence was “overwhelming” that the civil marriage ceremony was a sham entered into solely for immigration purposes. The court said:
I am satisfied that the [woman] did not enter into the agreement to participate in this sham of her own free will, but did so because of the threat of losing her job. I find that she was coerced into marrying the [man] and participated in the civil ceremony under duress.
The court readily granted the order declaring that the marriage to the man was a nullity.
For the full text of the decisions, see:
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com