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Couple Ask Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

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Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Couple Asks Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

A few months ago, we reported on a decision that required the court to untangle the complicated love-life a thrice-married man.

In another recent case, a married couple named Elizabeth and Patrick mutually asked the court to declare them “un-married” by way of an annulment – but only so that they can get married to each other again.   Turns out they had recently received a surprise from Canadian immigration officials, advising them that Patrick was ineligible to sponsor Elizabeth to immigrate to Canada as his wife because he was still married to someone else.

Patrick’s first wife was a woman named Yao, whom he had met and married in 2011.  They separated in 2012, and he started divorce proceedings a year later.  He had not heard from her in several years, and both he and Elizabeth assumed that the marriage had been validly dissolved when they tied the knot in August of 2017.  Soon after, Patrick applied to sponsor Elizabeth as his spouse for immigration purposes.

However – much to the newlyweds’ surprise – they received correspondence from Immigration, Refugees and Citizenship Canada that Patrick was not eligible to sponsor Elizabeth because his earlier marriage to Yao was still in force.    It turns out the divorce had never been finalized because Patrick’s lawyer was having trouble locating Yao.  It was only two years after their wedding to Elizabeth, in 2019, that Patrick was able to get a Certificate of Divorce that formally ended his first marriage to Yao.

Elizabeth and Patrick, therefore, asked the court to declare their 2017 marriage a nullity, which ironically would allow them to get married again, and would allow Patrick to apply a second time to sponsor Elizabeth for immigration.

This request for an annulment prompted the court to review the provincial and federal legislation that allows a court the authority to annul a marriage, and that prohibits a person from contracting a new marriage until every prior one is dissolved by death, divorce or court order.  The court also noted that one ground for an annulment is that there is a prior marriage still in existence.

The court, therefore, granted Patrick and Elizabeth’s request, on consent.  It declared that their 2017 marriage was void because at the time the ceremony took place he was still legally married to Yao. They were thus free to marry each other again, thereby satisfying immigration authorities in the process.

For the full text of the decision, see:

Arevalo v. McHenry, 2019 

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.