Civil Marriage Act (S.C. 2005, c. 33)

Act current to 2016-06-21 and last amended on 2015-06-18. Previous Versions

Civil Marriage Act

S.C. 2005, c. 33

Assented to 2005-07-20

An Act respecting certain aspects of legal capacity for marriage for civil purposes

Preamble

WHEREAS the Parliament of Canada is committed to upholding the Constitution of Canada, and section 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination;

WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;

WHEREAS the Supreme Court of Canada has recognized that many Canadian couples of the same sex have married in reliance on those court decisions;

WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms;

WHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex;

WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms;

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage;

WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes;

WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians;

AND WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended by legislation to couples of the same sex;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Marginal note:Short title

 This Act may be cited as the Civil Marriage Act.

PART 1Marriage

Marginal note:Marriage — certain aspects of capacity

 Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

Marginal note:Consent required

 Marriage requires the free and enlightened consent of two persons to be the spouse of each other.

  • 2015, c. 29, s. 4.
Marginal note:Minimum age

 No person who is under the age of 16 years may contract marriage.

  • 2015, c. 29, s. 4.
Marginal note:Previous marriage

 No person may contract a new marriage until every previous marriage has been dissolved by death or by divorce or declared null by a court order.

  • 2015, c. 29, s. 4.
Marginal note:Religious officials

 It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

Marginal note:Freedom of conscience and religion and expression of beliefs

 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

Marginal note:Marriage not void or voidable

 For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.

Marginal note:Marriage of non-resident persons
  •  (1) A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile.

  • Marginal note:Retroactivity

    (2) Subsection (1) applies retroactively to a marriage that would have been valid under the law that was applicable in the province where the marriage was performed but for the lack of capacity of either or both of the spouses to enter into it under the law of their respective state of domicile.

  • Marginal note:Order dissolving marriage

    (3) Any court order, made in Canada or elsewhere before the coming into force of this subsection, that declares the marriage to be null or that grants a divorce to the spouses dissolves the marriage, for the purposes of Canadian law, as of the day on which the order takes effect.

  • 2005, c. 33, s. 5;
  • 2013, c. 30, s. 3;
  • 2015, c. 29, s. 5(E).

PART 2Dissolution of Marriage For Non-Resident Spouses

Definition of court

 In this Part, court, in respect of a province, means

  • (a) for Ontario, the Superior Court of Justice;

  • (b) for Quebec, the Superior Court;

  • (c) for Nova Scotia and British Columbia, the Supreme Court of the province;

  • (d) for New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench for the province;

  • (e) for Prince Edward Island and Newfoundland and Labrador, the trial division of the Supreme Court of the province; and

  • (f) for Yukon and the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice.

It also means any other court in the province whose judges are appointed by the Governor General and that is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this Part.

  • 2005, c. 33, s. 6;
  • 2013, c. 30, s. 4.
Marginal note:Divorce — non-resident spouses
  •  (1) The court of the province where the marriage was performed may, on application, grant the spouses a divorce if

    • (a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;

    • (b) neither spouse resides in Canada at the time the application is made; and

    • (c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.

  • Marginal note:Application

    (2) The application may be made by both spouses jointly or by one of the spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court or a court located in the state where one of the spouses resides that declares that the other spouse

    • (a) is incapable of making decisions about his or her civil status because of a mental disability;

    • (b) is unreasonably withholding consent; or

    • (c) cannot be found.

  • Marginal note:Exception if spouse is found

    (3) Despite paragraph (2)(c), the other spouse’s consent is required if that spouse is found in connection with the service of the application.

  • 2005, c. 33, s. 7;
  • 2013, c. 30, s. 4.
Marginal note:No corollary relief

 For greater certainty, the Divorce Act does not apply to a divorce granted under this Act.

  • 2005, c. 33, s. 8;
  • 2013, c. 30, s. 4.
Marginal note:Effective date generally
  •  (1) A divorce takes effect on the day on which the judgment granting the divorce is rendered.

  • Marginal note:Certificate of divorce

    (2) After a divorce takes effect, the court must, on request, issue to any person a certificate that a divorce granted under this Act dissolved the marriage of the specified persons effective as of a specified date.

  • Marginal note:Conclusive proof

    (3) The certificate, or a certified copy of it, is conclusive proof of the facts so certified without proof of the signature or authority of the person appearing to have signed the certificate.

  • 2005, c. 33, s. 9;
  • 2013, c. 30, s. 4.
Marginal note:Legal effect throughout Canada

 On taking effect, a divorce granted under this Act has legal effect throughout Canada.

  • 2005, c. 33, s. 10;
  • 2013, c. 30, s. 4.
Marginal note:Marriage dissolved

 On taking effect, a divorce granted under this Act dissolves the marriage of the spouses.

  • 2005, c. 33, s. 11;
  • 2013, c. 30, s. 4.

 [Repealed, 2013, c. 30, s. 4]

Definition of competent authority

  •  (1) In this section, competent authority, in respect of a court in a province, means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.

  • Marginal note:Rules

    (2) Subject to subsection (3), the competent authority may make rules applicable to any applications made under this Part in a court in a province, including rules

    • (a) regulating the practice and procedure in the court;

    • (b) respecting the conduct and disposition of any applications that are made under this Part without an oral hearing;

    • (c) prescribing and regulating the duties of the officers of the court; and

    • (d) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Part.

  • Marginal note:Exercise of power

    (3) The power of a competent authority to make rules for a court must be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules for that court that are conferred on that authority by the laws of the province.

  • Marginal note:Not statutory instruments

    (4) Rules that are made under this section by a competent authority that is not a judicial or quasi-judicial body are deemed not to be statutory instruments within the meaning and for the purposes of the Statutory Instruments Act.

  • 2005, c. 33, s. 12;
  • 2013, c. 30, s. 4.
 
Date modified: