Earlier in this thread, I posted
an essay about "common law marriage" in Canada and the USA.
I have been doing more reading of the historical cases on this topic, and I just came across a case that is particularly interesting for anybody who is interested in highly technical aspects of marriage law.
In the 1912 case of
In re Marriage Laws, [1912] SCR 132,
1912 CanLII 35 (SCC) (summarily affirmed [1912] UKPC 63), the Supreme Court of Canada considered the constitutional validity of a federal statute that purported to legislate something roughly equivalent to the Full Faith and Credit Clause of the US constitution. Specifically, the statute purported to provide that any marriage shall be deemed to be a valid marriage everywhere in Canada, if the marriage was valid in the place where it was entered into.
This statute was challenged on the basis that it was outside the power of the federal parliament because the constitution specifically provides that the provinces have exclusive jurisdiction over the "Solemnization of Marriage".
In response, the promoters of the legislation apparently started by claiming essentially that under the common law of England, marriage was created by consent (not formalities) and any statutes setting out formalities merely provided alternative ways to enter into marriages, not the sole way to do so. Based on that claim, the promoters further argued that since the constitution used the phrase "solemnization of marriage" in describing the powers of the provinces, this language was an intentional choice intended to suggest that the provinces could only regulate
supplemental ways of creating marriages, and that the provinces had no power to override the common law of marriage creation, and (according to the promoters) the only thing that the federal statute did was reiterate the common law position which the provinces had no power to modify. Based on that argument, the federal statute was claimed not to be objectionable.
The report of the case, linked to above, contains the full argument of the parties. The full report is 98 pages long and many of those pages are devoted to argument over whether "common law marriage" existed or exists in England, Canada, or the US.
By a 4-1 majority, the Court found that the statute was an unconstitutional encroachment on the power of the provinces, and in the course of their separate opinions, the various judges appear to have rejected the idea that "common law marriage" existed either in England or in Canada.
