D. Domestic Relations (en passant)

D. Domestic Relations (en passant)

With respect to its formal validity, it is governed by the law of the place of its solemnization or by the law of the country of domicile or of nationality of one of the spouses.

Where the spouses are domiciled in different countries, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the place of solemnization of the marriage.

That law also applies to the effects of a civil union, except those binding all spouses regardless of the civil union regime, which are subject to the law of the country of domicile of the spouses.

Marriage

• 
  Formal validity rules governed by law of domicile.
  
• 
  Issue of who can marry is issue of formality of marriage.
  
• 
  How consent is given: issue that goes to formal validity of marriage
  
• 
  Issue of essential validity is for cases of prohibition of marriage: ie polygamy, or bt blood relatives. Depends on domicile of intending spouses.
  
• 
  Marriage cannot be valid for one and invalid for another so you need validity of both places for it to be valid.
  
• 
  For formal validity drafters didn’t think it went to central issues such as capacity but how celebration is done. Not so much a public policy issue if somebody’s formality laws are respected.
  
• 
  The issue of marriage and choice of law creates debate.
  
• 
  Basically, CML agrees w/ CVL that domicile is important, but case law in CML suggests that domicile of intended matrimonial home can apply. Even if you lack capacity and move to where marriage is allowed then latter jur’n applies.
  
• 
  Apply law of each of intended spouses.
  
• 
  On formality side CML says it’s law of place of celebration. One and only one applies. Marriage must be vlaid in place where celebration takes place. Qc CVL says that as long as person presiding ceremony is from Qc it’s ok if you all go to Hawaii to perform marriage.
  
• 
  So marriage restrcited to issues of statutes.
  
• 
  Effects of marriage (3089) subject to laws of domicile of spouses. But in case of separate residences, law of last common residence or failing that law of place where marriage was solemnized.
  
• 
  Dissolution (3089.2) refers to proceedings of nullification of marriage. This is non-divorce sense of word. Ie nullification bc there never really was a true marriage. Ie for lack of consent, lack of consumation.
  
• 
  For divorce (ie there was valid marriage) from PrIL and substantial law point of view we look at Federal Divorce Act. Does not have traditional choice of law rule for divorce.
  
• 
  Approach taken in area of divorce the jur’n and choice of law are considered as one question. So if Can court has jur’n to grant divorce then applicable law is Canadian court’s law. This is a universal approach (ie in all countries)
  
• 
  What are jur’nal rules for Can divorce: residence of either spouse in prov where divorce petitioned is made for at least one year preceding the divorce (gives Can courts to grant divorce under Divorce Act).
  
• 
  If both petition in diff provinces, Divorce Act says it goes to wherever divroce was filed first. If on same date then goes to federal court.
  
• 
  These jur’n rules are also in effect the choice of law rules.
  
• 
  Recognition of validity of divorce gratned by courts of another country: divorce act here has 2 sets of rules: first is reciprocal recognition rule. If request done by party who is ordinarily rsident of other place for at least one year, then Can court accepts the foreign divorce as valid and recognized. But Divorce act also preserves CML rules on recognition of forieng divorce which say any real and substantial connection will be sufficient for courts to recognize the foreign divorce.
  
• 
  So rules have evolved so that as long as process is similar to Can’s then Can courts will accept them.
  

• 
  Parties married under Iranian law. Some evidence of marriage K.
  
• 
  Lived together in Ont 4-5 months before returning to Iran
  
• 
  J-M claimed that T-Z sent her back to Iran against her wishes.
  
• 
  Parties divorced under Iranian law in 2001. J-M claims she didn’t want divorce and signed under duress
  
• 
  J-M applying for spousal support under Divorce Act or under Family Law Act but does not make divorce claim
  
• 
  T-Z responds court has no jur’n under either Act as parties arent spouses and were divorced in foreign jur’n and J-M is not making divorce claim. T-Z claims he paid J-M as required by marriage K.
  

• 
  Divorce Act requires applicant to have been resident in Iran for 1-yr prior to divorce to have it recognized in Can
  
• 
  Intention alone does not determine issue of ordinary residence. J-M in Iran for 3-yrs before Iranian divorce.
  
• 
  So foreign divorce should be recognized for purposes of determining parties’ marital status.
  
• 
  Court had no authority to grant corollary relief under Divorce Act unless parties were divorced in Canada, nor can Can court vary a foreign divorce order
  
• 
  Only in rare circumstances can foreign divorce obtained pursuant to laws of jur’n not be recognized as being valid
  
• 
  Whether J-M reluctant to participate in Iranian divorce proceeding or whether she felt duress, she did participate (^^ attorned) and accepted monetary settlement.
  
• 
  There was no basis for refusing to recognize Iranian divorce as valid.
  
• 
  Under Family Law Act spousal support denied for 2 reasons: (1) application exceeds 2-yr limitation period and (2) a divorced person cannot make claim for spousal support under Family Law Act.
  
• 
  Marriage K outside Ont is valid and enforceable in Ont if entered in accordance w/ Ont law.
  
• 
  J-M did not show evidence Iranian marriage K was entered in accordance w/ Ont law.
  

• 
  About Iranian marriage. Wife wanted marriage to not be recognized bc she wanted to claim benefit of divorce proceeding but also bc she wanted support for proceedings from abroad. Only place to get benefit of relief was to persuade court that she needed divorce bc iranian divorce could not be recognized.
  
• 
  Many connections to iran so Can courts found that they could not exercise court order jur’n bc that’s reserved for Can court decisions.