To a large degree the legal issues around love and marriage for older adults are the similar to those facing middle aged and younger adults. But in some areas, there can be important differences.

 

Quick Facts

 


Marriage, divorce and related laws are a shared responsibility between the federal and provincial governments. The Divorce Act is a federal law and deals with the process of dissolving a marriage and "marriage relief". The provincial or territorial laws will deal with spousal support and child support, and the mechanisms to enforce these. They also deal with division of property upon dissolution of a marriage.

Provincial laws set out

(a) the mode of solemnizing marriages;

(b) the validity of marriages;

(c) the qualification of parties about to marry;

(d) the consent of guardians or parents, or any person whose consent is necessary to the validity of a marriage.

 

 


Marriage

 

The BC Law Students Legal Advice Manual chapter on Family Law notes the following key points:

Marriage creates a legal relationship between two people. It gives each person certain legal rights and obligations. A marriage must comply with certain legal requirements. Therefore, not all marriages are valid.

1. Legal Requirements

To be valid, a marriage must meet several legal requirements. If people fail to meet these requirements that may make the marriage invalid right from the start (void ab initio). In other circumstances, such as sham marriages or marriage in which one party did not consent or did so under duress, may be voidable. That means the marriage is valid until someone has applied to the court to annul the marriage.

a) Sex

In the past, spouses had to be of opposite genders. Today as a result of the passage of Bill C-38 by the federal government in 2005. opposite sex and and same-sex couples can now marry in every province and territory

b) Relatedness

The federal Marriage (Prohibited Degrees) Act, (1990, c. 46) bars marriage between lineal relatives, including half-siblings and adopted siblings.

c) Marital Status

d) Age

Both spouses must be over the age of majority, with certain exceptions made for people younger than that.

e) Mental Capacity

At the time of the ceremony, both parties must be capable of understanding the nature of the ceremony and the rights and responsibilities involved in marriage.

Mental capacity to marry may be affected by extreme intoxication, for example, or certain kinds of mental impairment. Dementia and other conditions that affect memory, judgment or reasoning may make the older person lack the mental capacity to marry.

 


Living Common Law

 

Although many people may think common law marriage is the equivalent to a legal marriage, in law it is treated differently. In a marriage, rights and obligations start immediately once the couple is married. In contrast, people of any age who are in a common law relationship must have lived together for a specified period of time before their rights and obligations "kick in". Plus the rights of people living common law are often substantially weaker than those of married couples. The process for dissolving the common law relationship is different from a marriage as well.

 

Statistics Canada's 1996 report provides an overview of the legal differences for married and common law couples.


Remarriage

Remarriage in later life is one of the situations that causes difficulties for some older adults. Some decide not to remarry because it may affect certain benefits or entitlements they have.

Some older adults find that their children are happy that they are contemplating marriage again. Others may find family actively opposing it.


 

Resources



The study found that more than 1 million older adults in the US, composing 4% of the unmarried population, currently lived together in common law relationships. About 90% of these individuals were previously married. The study showed significant differences among people living common law, people who remarried, and people were unpartnered. They had different socio- demographic characteristics, economic resources, physical health, and social relationships. People living common law tended to be more disadvantaged compared to those who remarried, and this was especially evident for women.



This is an American article, so the specifics do not apply  well to the Canadian scene. However, it  highlights some of the unique issues facing older adults, such as  marriage versus cohabitation, effects on benefits and entitlements, mental capability, undue influence and duress in signing the  agreement, protection of children and grandchildren of a previous marriage.