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A marriage licence is critical to a legal union

Some interesting problems can arise for couples who have participated in religious marriage ceremonies in Ontario and some may find out they're not legally married after all, Toronto lawyer Michael Cochrane writes in Lawyers Weekly.

In the article, he points to seven basic requirements of an Islamic marriage, including: the Nikah wedding ceremony must have witnesses to the parties' consent, a respected community person will perform the ceremony and should present a dua (sermon) and the ceremony should be solemnized in accordance with the jurisdiction's laws, the groom should provide a mar (dowry) during or after the ceremony and the event should be followed by a walima (reception). The couple should also consummate the marriage.

Cochrane, partner with Brauti Thorning Zibarras LLP, says in Lawyers Weekly that unfortunately in some cases the "respected person" is not always someone who is authorized to perform marriages in Ontario.

He points to the example of  Muhammed Abdalla and Thwaiba Kanafani, who married in Toronto on 2004 in a Muslim marriage that was conducted by an Islamic religious leader.

"At separation, a question arose as to whether the wife’s registration of a designation of a matrimonial home should be removed from title because, as Abdalla explained in Ontario Superior Court, they were, in fact, not married," he writes in the publication. "The court agreed, and the designation was removed from title."

Cochrane also highlighted in the article another case law example that goes back to 1991, when Ayoub and Osman went through a formal Nikah officiated by an Imam but didn't obtain a marriage licence. They enjoyed 12 years of marriage.

"However, neither party was in a position to prove that they had actually ever been married. As a result, Ayoub sought to have his separation agreement set aside. Again, in these circumstances, the court found the marriage to be valid," he writes in Lawyers Weekly. 

Cochrane also says in the article that these cases – as well as others involving different forms of religious marriage for Jews, Catholics, Sikhs and Hindus – are presenting Ontario courts with challenges. They raise the question of whether purely religious marriages should be upheld and whether the participants should qualify as legally married spouses.

And there are a long line of cases, stretching back to 1957, that provide a test to assist the court in sorting out this issue, says Lawyers Weekly.

Ontario’s Family Law Act, s. 1(1)(b), defines “spouse” as two persons who have together entered into a marriage that is void or voidable, in good faith on the part of a person relying on the assertion of a right as a result of the marriage, says the article. Section 4 of Ontario’s Marriage Act provides that no marriage can be solemnized, except under the authority of a licence issued in accordance with the act. No licence means no legal marriage, says the publication.

Cochrane says in the article that word should go out to the Muslim community that a Nikah, on its own, will not necessarily be a valid marriage for the purposes of family law. A marriage licence and registration will make the ceremony conclusive.

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