Court Cases & Orders

Non-Ontario Marriage: Did Couple Intend to Wed, or Just Legitimize their Pre-Marital Sex?

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

Non-Ontario Marriage: Did Couple Intend to Wed, or Just Legitimize their Pre-Marital Sex?

It was a case of “he said/she said” before the Ontario Court of Appeal recently.

That court was asked to rule on whether a couple’s religious marriage ceremony outside the province could be deemed valid for Ontario Family Law Act (FLA) purposes. The woman said they always intended to be “spouses”;  the man said they went through with it merely to justify the pre-marital sex they were already having.

In 1998, the couple had participated in a religious ceremony in a Memphis, Tennessee mosque.  The man, who was a practicing Muslim, had been attending there for a few months. The ceremony took place on a weekend when the woman had come to visit him from Canada.

At the end of the ceremony, which was witnessed, the couple were presented with a document that said “marriage certificate” on it.  It attested to their having undergone a marriage in accord with the Quran and Sunnah.  It also stated they were imbued with the rights and privileges of husband and wife according to Shariah law of Islam.

However, the woman and man never confirmed or complied with the formal requirements under Tennessee law.  They never tried to register the marriage, nor did they obtain a license from any government, including the Canadian one.  They were both unaware that they were not complying with local marriage laws at the time.

In short: They considered themselves to be legally married.

In 1999, the couple started openly living together in Ontario.  This was after buying a home and having three children together.  On their filed income tax and government documents, they identified themselves as married spouses.

After they separated in 2016, the woman applied for equalization of Net Family Property (NFP) under the FLA. The man objected, claiming that they were never actually married to each other.  He said the 1998 ceremony in Memphis was not reflective of an intent to get married – rather, it was just a “religious arrangement”.  The court explained his position:

While the [man] subsequently disputed the legal validity of the ceremony for the purposes of property equalization, his evidence was that he believed the ceremony was necessary to permit the parties to engage in sexual relations, as pre-marital sexual relations were considered sinful under Islamic religious law. The [woman] had converted to Islam about a year before the ceremony.

From a legal standpoint, the man asserted that they did not qualify as “spouses” under the FLA, so the woman was not eligible to claim equalization of their respective NFP.

At trial, the judge endorsed the 1998 marriage as being a valid one under the Ontario Marriage Act.  This meant the couple were “spouses” under the FLA.

The man’s later appeal to the Court of Appeal was denied.  The relevant provisions of the Marriage Act (namely s. 31) applied, and operated to convert this Memphis marriage into a valid one under Ontario law.  If the provision was intended to apply only to Ontario marriages, the legislation would have said so.  Instead, it required only that for a deemed valid marriage to exist, the must be a marriage ceremony that:

  • Had been solemnized in good faith, and
  • Was intended to be in compliance with the Marriage Act.

Also, the Act stipulated that neither party can be under a legal disqualification to contract marriage, and they must have lived together and cohabited as a married couple after the solemnization ceremony.

All of these elements were present here.   To interpret the Act too strictly was not in line with its purposes, which was to recognize the validity and longstanding importance of marriage.  It was also appropriate to look at the couple’s subjective good faith and intent to comply with the marriage laws.

Here, the man and woman showed they were acting on the belief their Memphis marriage ceremony created a binding marriage under the laws of both Tennessee and Ontario.  Their only shortcoming was their failure to obtain a marriage license in either jurisdiction.

Their marriage was deemed valid in Ontario, and they were “spouses”.  The woman could proceed to make her equalization entitlement claims under the FLA.

For the full text of the decisions, see:

Lalonde v. Agha, 2021 ONCA 651

Lalonde v. Agha2020 ONSC 3486

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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), Oshawa, Concord, Lindsay, and Peterborough.

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