The federal and provincial governments share constitutional power with respect to marriage (and divorce). The federal government has broad legislative responsibility for divorce and for aspects of capacity to marry or who can legally marry whom. The provinces are responsible for laws about the solemnization of marriage.

All provincial and territorial marriage acts:

• provide for religious and civil marriage ceremonies
• require witnesses to a marriage ceremony
• identify officials or individuals authorized to solemnize a marriage
• set minimum age requirements for marriage

Marriages that take place in Canada must meet federal requirements with respect to the right to marry and provincial requirements with respect to solemnization. The choice of whether or not to marry is constitutionally protected.

Factors to consider

• Requirement to be married before submitting the application
• Minimum age for marriage in Canada
• Not related by consanguinity (blood relatives)
• Marriage must be valid where it took place and under Canadian law
• Marriage where one or both parties are not physically present (e.g. proxy, telephone, fax, Internet)
• Polygamy
• Legality of foreign divorces

Requirement to be married before submitting the application

IRCC cannot require couples to marry in order to immigrate. However, if they are not married, they must be common-law partners. There is no provision in IRPA for fiancé(e)s or intended common-law partners. The expectation is that a Canadian or permanent resident and a foreign national will get married or live together and establish a common-law relationship before they submit sponsorship and immigration applications.

Minimum age for marriages that took place in Canada

For marriages that took place in Canada on or after June 19, 2015

• the minimum age for marriage is 16 (as per section 2.2 of the Civil Marriage Act)
• parental consent must be provided when one or both spouses are between 16 years old and the age of majority of the province or territory where the marriage took place

The age of majority is 19 in

• British Columbia
• Newfoundland
• Nova Scotia
• Nunavut
• the Northwest Territories
• the Yukon

The age of majority is 18 in

• Alberta
• Manitoba
• New Brunswick
• Ontario
• Prince Edward Island
• Quebec
• Saskatchewan

For marriages that took place in Quebec after June 8, 2016, the marriage must have been authorized by a court in Quebec if one or both spouses are between 16 and 18 years of age. Registration of the marriage in Quebec is acceptable proof that the requirements were complied with.

Once an underage spouse turns 18, they can be considered to be a member of the family class. This applies even if the spouse married at a younger age. For example, a person who was married at 16 is eligible to be sponsored as a spouse when they turn 18.

Not related by consanguinity (blood relatives)

To contract a valid marriage, a person must have the “capacity” to do so. An element of capacity is that two people are not blood relatives, i.e. related by “consanguinity”.

The federal Marriage (Prohibited Degrees) Act prohibits marriage between persons related lineally by consanguinity or adoption, and between siblings, whether brother and sister by whole blood (same parents), half-blood (one common parent) or by adoption.

The following relationships, whether by consanguinity or adoption, fall within the prohibited degrees. In Canada, applicants may not marry their:

• grandfather/grandmother
• father/mother
• brother/sister
• half-brother/half-sister
• son/daughter
• grandson/granddaughter
• other lineal relatives, such as great-grandparents/great-grandchildren

In Quebec these relationships are repeated in the Civil Code.

Marriage must be valid where it took place and under Canadian law

A marriage that took place abroad must be valid both under the laws of the jurisdiction where it took place and under Canadian federal law in order to be considered legal for immigration purposes. A marriage that is legally recognized according to the law of the place where it occurred is usually recognized in Canada, but the onus is on applicants to prove that their marriage is legal.