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MARRIAGE - Annulment of marriage - Prior subsisting marriage - Void or voidable marriage

Thursday, March 08, 2018 @ 8:43 AM  


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Application by the husband for a declaration the marriage was void ab initio, striking the wife’s spousal support and property division claims, and extending the time to file a financial statement. The husband had a wife and children in China, but met the subject wife on a business trip to Vancouver, began dating her and proposed marriage. The parties went through a marriage ceremony in Las Vegas. The wife later learned the husband was still married to his wife in China and did not intend to immigrate to Canada. Nine months after the marriage, the wife brought an application for divorce, spousal support and property division. The husband argued the marriage was void ab initio, and the definition of spouse under the Family Law Act (FLA) did not include null and void marriages, so the wife could not claim support and property division.

HELD: Application allowed in part. As the husband was still married to his wife in China, this marriage was void ab initio. There was a lack of case law on this issue under the Family Law Act. Under the Family Relations Act (FRA), null and void marriages were explicitly included in the definition of spouse under s. 1 and in time limits referred to in the property division and spousal support sections in s. 56 and s. 89. Under the FLA, time limits were addressed separately in s. 198 and the definition of spouse under s. 3 did not explicitly include persons whose marriages were null and void. However, the records surrounding the enactment of the FLA and overall construction indicated the legislature intended to replace the term null and void with “nullity” in s. 198, and that s. 198 had to be read together with s. 3. Section 3 referred to time limits, linking the two provisions. Reference to the time limits section was needed to determine when entitlement to spousal support and property division arose. Upon reading s. 3 and s. 198 together, in the context of property division and spousal support, the FLA maintained rights previously available under the FRA in situations involving marriages that were void ab initio. Section 198(2)(a)(ii) made no distinction between void and voidable marriages, it simply spoke to nullity. The wife was not barred from making her claim. Given the husband lived in China and had complex financial circumstances, he was given 21 days to file his F8 financial statement.

Li v. Rao, [2018] B.C.J. No. 144, British Columbia Supreme Court, C.L. Forth J., January 30, 2018. Digest No. TLD-Mar52018008