Marriage as Legal Relationship


The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

Marriage Defined

This topic discusses marriage as a legal relationship. Marriage is a legal and personal commitment. It is a contract or promise between two people. This contract can end only by a divorce or annulment Court Order. A divorce terminates the marriage whereas an annulment puts the parties in the position they would have been before marriage, as if the marriage never even took place.

Conditions of Marriage

There are certain conditions of a marriage imposed by law that will be enforced by the Courts. These conditions include:

  • Bigamy:  Bigamy is where it is illegal under the Criminal Code of Canada, to be married to two people at once. You not marrying another person while you are still married to your spouse.
  • Support:  Both spouses have an obligation to financially support each other and the children of the marriage. It is an offence under the Criminal Code of Canada not to provide your spouse or children with the necessities such as food, shelter and clothing.
  • Adultery: There is an agreement between the spouses to a voluntary sexual union and a committed relationship. Sexual relations with someone other than your spouse is adultery, and would be a reason for a court to grant a divorce
  • Spousal Privilege: If your spouse is charged with a criminal offence, you cannot be forced to testify against your spouse unless your spouse is charged with certain sexual offences, offences against the children of the marriage or certain offences against you personally.

Requirements for a Marriage

In Alberta, there are certain requirements you must meet in order to get married. If these requirements are not met, the Court may annul your marriage. Some conditions that must be met in order to get married, include:

  1. The marriage must be voluntary and both parties must agree to marry each other; or
  2. Neither person may currently be married to someone else. They both must be single, widowed or divorced; or
  3. You cannot be related by blood or marriage; or
  4. You must be 18 years or older (exceptions include individuals between the ages of 16 and 18 years who have parental consent or a female under 16 years is pregnant or the mother of a child and has parental consent).

Once you determine you meet the requirements and do not violate the above conditions, you must meet certain requirements to be legally married. To get married in Alberta, both parties need to get a marriage licence, have a civil or religious ceremony and have an authorized person to conduct the ceremony. There are several requirements on how to conduct a proper ceremony. You may contact Service Alberta at 780-427-7013 for more information on what the exact requirements are.

Surnames

Spouses may keep their maiden name, accept the other spouse’s name or use both names. A spouse may continue to use their maiden name for legal purposes, such as signing cheques and use the adopted name for social purposes. If you chose to change your maiden name to your spouse’s name, you also must make this change on all government IDs.

If you and your spouse agree to use the same surname, your children will be registered under that name unless you both agree to use the other’s maiden name or both your names. If you and your spouse use different surnames, your children will be registered using both surnames in alphabetical order. If you want to use just one of the surnames or put the surnames in some type of order, you must make a joint request.

Property of a Marriage

If you seek a divorce, the law in Alberta requires all property acquired during the marriage be divided equally between the spouses, with some exceptions. The Matrimonial Property Act governs such matters. If you cannot determine what is marital property, A Court will decide. Separate property may be that which a spouse obtained before marriage or as a gift. Marital property can be determined by factors such as, what funds were used to purchase the property and its purpose.

Couples may enter into an agreement on things such as future plans, division of chores and money arrangements during the marriage. The Courts may not always enforce such agreements.  However, an agreement concerning property division and spousal support is enforceable by the Courts if properly prepared. You need to sign a document stating that you each had received independent legal advice before signing the document and that you understand the agreement’s terms.

If both spouses bought a house during the marriage and put the title as a joint tenancy, the title is registered in both names. If one spouse dies, the other will have right to it and will be allowed to sell it. You may also have rights within the home even though the home may be registered in only one spouse’s name. The marital home cannot be sold without the consent of the other spouse. This is called ‘Dower Rights’. If your spouse dies and the home is registered in your spouse’s name, you may live there for the rest of your life even if someone else has inherited the property. The rights belong to you as long as one of you lived in the home.

Marital Money

Bank accounts may be in individual or joint names. If it is in joint names, either of you may take out money.  If the account is only in one of your names, the other cannot take any money out. Debts can also be registered in joint names.

If you both sign a credit card application or a loan application, you are both responsible for the whole debt. If one does not pay, the creditor may hold the other responsible for their spouse’s debt. Always make sure you understand your legal responsibilities before you sign anything.

Death of a Spouse or Spouses

According to the Wills and Succession Act, if a spouse dies without a will, all their property goes to the surviving spouse. If both spouse’s die without a will, their estate is distributed to their children. The will must provide financial support for your dependants.

When both parents die, their children will become ‘wards of the government’ and a guardian will be appointed for them until the Court determines the children’s permanent guardian. The parent’s naming a specific guardian in their will won’t guarantee that the Court will appoint that person. However, the Court will certainly consider the spouse’s wishes in determining the best interests of their children.

Children of a Marriage

During a marriage, both parents are guardians of their children with equal rights and responsibilities. They both have a duty to support their children and provide them with necessities of life. If children are neglected or abused, the government can have them removed from their family home. Upon separation or divorce, they continue as guardians and are legally responsible to act in the best interests of their children. Custody matters will be determined by the courts based on the child’s best interests too.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.