In Canada, the majority of family law that encompasses marriages, separations and divorces, is governed by Statute. According to Section 91(26) of the Constitution, the federal government has exclusive authority over marriage and divorce. The Divorce Act is the primary piece of federal law that governs the problems that arise when married couples separate as well as the procedures for obtaining a divorce. According to the Divorce Act, the federal government has authority over issues such as child custody and access, as well as spousal and child support, whether during or after a divorce is finalized. The Divorce Act does not apply to property divisions or disputes.
According to Section 92(12) of the Constitution Act, 1867, the provinces have exclusive jurisdiction over the solemnization of marriages, as well as jurisdiction over spousal and child support, property division, child custody and access, adoption, and child protection as part of the provincial government’s jurisdiction over property and civil rights under Section 92(13) of the Constitution Act, 1867, and jurisdiction over matters of a private nature under Section 92(16) of the Act. Each province has enacted legislation that governs the distribution of property in the event of a divorce or separation.
Marriages
As of 2005, a marriage may be established between two people who are either of different or the same gender. Marriages are banned in situations where a person lacks the mental ability to consent or when there is a direct family connection, such as a parent-child or brother-sister relationship. The legal age of majority is sixteen years old. A legal marriage must be appropriately solemnized in accordance with the laws of the province in which it takes place.
As of 2005, a marriage may be established between two people who are either of different or the same gender. Marriages are banned in situations where a person lacks the mental ability to consent or when there is a direct family connection, such as a parent-child or brother-sister relationship. The legal age of majority is sixteen years old. A legal marriage must be appropriately solemnized in accordance with the laws of the province in which it takes place.
Discontinuation
A marriage, being a prenuptial agreement, may be declared invalid or voidable in the same way that a contract can be declared void or voidable. When the partners do not have the legal ability to marry, the marriage is null and invalid (known as the essential validity of the marriage).
In this case, weddings involving blood relatives, couples who are already married, children under the age of majority, and those who are otherwise unable to agree would all be unlawful due to a lack of essential validity. If the spouses are unable to complete the marriage, the marriage is voidable and may be cancelled by a court of law.
Canadian provinces and territory have enacted Marriage Acts that outline the formal requirements for a legally binding union to take place. The partners must obtain a marriage license, be of legal age, or have parental permission in order to be married. A marriage conducted outside of the province will be legal provided the marriage is valid where it is celebrated, which is known as the lex loci celebrationis (law of the place of celebration).
Separation of Family
The legal ramifications of a divorce may be regulated by a contract between the parties involved. With or without the help of attorneys, most people discuss and write a separation agreement throughout their divorce. When both parties are represented by their own legal counsel, the greatest chance of a successful negotiation exists.
A separation agreement may spell down the parties’ agreement on the distribution of assets, as well as on child support, spousal support, custody, and access. Before parties engage into an agreement involving support and property issues, it is highly suggested that they disclose all relevant financial information and provide supporting documents such as appraisals and income tax information.
Many jurisdictions provide mediation services to assist parties in resolving or narrowing their differences, whether or not they are represented by attorneys. Alternatively, parties may engage into pre-nuptial agreements to control the financial ramifications of a future marital disintegration. If it is shown that one party engaged in unfair bargaining, the agreement may be declared void.
It is critical that a complete and accurate financial disclosure be provided before to entering into a marriage or cohabitation agreement, or else the agreement may be thrown aside by a court of competent jurisdiction. In a marriage or cohabitation arrangement, it is impossible to agree on issues such as child custody, access, and child support.
Divorce
An application for divorce is only permitted under the Divorce Act if the couple has been separated and apart for at least one year, or if the couple has committed adultery or cruelty to one another. Practically speaking, virtually all divorces are handled via an application based on the couple’s having lived separately and apart for at least one year prior to filing.
It is conceivable for couples to live separate and apart while yet living in the same house or apartment together. Since the second of July, 1968, a central register of divorce proceedings has been maintained in Canada. If a second divorce application is filed involving the same two spouses, the Registry notifies the court system of the new filing. For each divorce application that is received, the courts must complete an application form and submit it to the Registry of Divorce. In accordance with the Divorce Act, a Registry was established, which is regulated by legislation.
Division of Property thereof
After subtracting debts, it is assumed that all marital assets and property would be divided equally between the spouses. Depending on the jurisdiction, the extent of divided marital assets may differ significantly. Most provinces consider all assets acquired during the marriage as well as any other assets that are pooled together in the calculation of the estate.
The marital house and pensions are the most valuable divisible assets, followed by stocks and bonds. Amounts usually excluded from consideration include inheritances (unless the inheritance was used to buy the marital house or to pay the mortgage on the marital home), monetary damages for personal injuries, and other assets not specified in the agreement. In certain jurisdictions, business assets may also be exempt from taxation. Assets for a business are usually restricted to those that provide an instant benefit in some kind of entrepreneurial ability. If a spouse owns a company, the worth of the business may be calculated and included in the division of marital property.