Court Cases & Orders

The Laws Around the Non-Consummation of a Marriage: Which Jurisdiction’s Laws Govern

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Written by Russell Alexander / (905) 655-6335

In a case called Sahibalzubaidi v. Bahjat, the wife asked the Ontario court to annul her marriage to the husband on the basis that they had never consummated it.   The civil wedding ceremony took place in Malaysia and was duly registered there, but immediately afterwards she returned to her home in Canada to await her new husband’s arrival, under the immigration sponsorship process.

The non-consummation was on account of the wife’s strongly-held religious belief that the Malaysian ceremony represented only the civil portion of an Islamic marriage ceremony.  As a devout Muslim, she believed that she was prohibited from consummating the marriage until the couple had taken two further steps, namely: 1) receiving a religious blessing, and 2) participating in a public marriage feast.

Those two added steps never took place, because soon after the husband arrived in Canada the wife and her family concluded he was abusive. The wife stated she would never have married him if she had known of his true character beforehand. (Which was a factor that the court considered in another part of this judgement on the annulment issue, which we discussed in an earlier blog here).

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The question for the court was whether the wife’s annulment application to the Ontario court should be granted.  The court held that it should.

The ceremony took place in Malaysia, but the wife’s pre-marital domicile was Ontario. The laws of Ontario, therefore, governed the issue of how the non-consummation of the marriage affected the wife’s ability to get an annulment.  Those laws recognized that an annulment could be granted on the basis that the marriage was never consummated due to the wife’s strongly-held religious beliefs as to the need for a religious blessing and the public marriage feast to make the marriage valid.

(This was distinct from annulling the marriage because those added steps had not taken place;  the court found there was insufficient evidence on how or whether the legal validity of the marriage was impaired by the failure to perform all three components of the Islamic ceremony).

For the full text of the decision, see:

Sahibalzubaidi v. Bahjat, 2011 ONSC 4075 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.