Marriage as Legal Relationship

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic discusses marriage as a legal relationship. Marriage is a legal commitment as well as a personal one. It is a contract between two people. This contract can only be ended by a Court Order of divorce or annulment.

There are certain conditions of a marriage imposed by law that will be enforced by the Courts. For example, there is an agreement between the spouses to a voluntary sexual union and a monogamous relationship. Sexual relations with someone other than your spouse are adultery, and would be a ground for divorce. Marrying someone else, while still married to your spouse, is bigamy and is illegal under the Criminal Code of Canada. 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 necessaries of life such as food, shelter and clothing.

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 or offences against the children of the marriage or certain offences against you personally.

There are certain formal requirements for a valid marriage. If these requirements are not met, the Court may annul your marriage. For example:

  • The marriage must be voluntary. Both parties must consent to marry each other.
  • Neither person may currently be married to someone else. You must be single, widowed or divorced.
  • You cannot be related by blood or marriage.
  • You must be 18 years or older. If you are between 16 and 18 years, your parents must give their consent. A female under 16 years may get married if she is pregnant or the mother of a child, but parental consent is still required.

Either spouse may keep their maiden name, adopt the other spouse’s name or use both names. A spouse may continue to use their name for legal purposes, such as signing cheques, and use the adopted name for social purposes. If you and your spouse use the same surname, your children will be registered using 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 other order, you must make a joint request.

Upon divorce the law in Alberta requires all property acquired during the marriage be divided equally between the spouses with some exceptions. A Court will decide if you cannot agree. If you bought a house together and put title as a joint tenancy, the title is registered in both names. If one of you dies, the other has the right of survivorship and is entitled to sell it. You have certain rights even though the home may be registered in only one of your names. For example, the matrimonial home cannot be sold without the consent of the other spouse. These are called Dower Rights. If your spouse dies and the home is registered in your spouse’s name, you may live there the rest of your life even if the property has been inherited by someone else. The rights belong to you as long as one of you lived in the home.

Couples may enter into an agreement to deal with future plans, division of chores and money arrangements during the marriage. These types of agreements may not be enforced by the Courts. 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 contents.

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 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 try to make either or both spouses pay. Always make sure you understand your legal responsibilities before you sign anything.

If you die without a Will, your property is distributed according to the Intestate Succession Act. If both married persons die without a Will, their children will become wards of the government and a guardian will be appointed until the Court decides who the children’s permanent guardian will be. Naming a guardian in your Will cannot guarantee that the Court will appoint that person, but the Court will certainly consider your wishes in determining the best interest of the children. You must provide financial support for any dependants that you have in your Will.

When you are married, you are both guardians of your children with equal rights and responsibilities. When you separate or divorce, you continue as guardians and are legally responsible to provide emotional and physical care for your children. If children are neglected or abused, the government can have them removed from your home.