538 THE CELEBRATION OP MARRIAGE IN CANADA A Comparative Study of Civil and Canon Law outside of the Province of Quebec by Leo G. iiinz, O.S.t. St. Peter's Abbey, Muenater, bask. A DISSERTATION Submitted to the Faculty of the School of Canon Law of the Catholic University of Ottawa in Partial Fulfillment of the Requirements for the Degree of Doctor of Canon Law • -N " . • ^ °« THF CATHOLIC UNIVERSITY OP OTTAWA -0:;?/g Ottawa, Ontario TtU •^ '\ 1953 B»tlOTH*QU<:S * %*,y of O** UMI Number: DC53897 INFORMATION TO USERS The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleed-through, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. UMI® UMI Microform DC53897 Copyright 2011 by ProQuest LLC All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, MI48106-1346 DEDICATED TO THE PIONEER MONKS OF ST. PETER'S ABBEY ON THE OCCASION OF THE GOLDEN JUBILEE OF FOUNDATION TABLE OF CONTENTS Pages FOREWORD Viii ABBREVIATIONS xii Chapter 1. PRELIMINARY DISCUSSION 1 Article 1. The law ;-T0vernin»: the celebration of marriage 1 Article 2. Provincial powers ever marriage 3 Article 3. Invalidating force of statutory requirements. 8 PART I HISTORICAL DEVELOPMENT Chapter 2. HISTORY OF MARRIAGE LICT3LATI0N IN ENGLAND.... 13 Article 1. Before the Act of Supremacy 13 1. Definition of the Common Law and Its early development 13 2. Influence of Canon Law on English Common Law 17 Article 2. From the Act of Supremacy to the present day. 20 1. Immediate influence of the Sn^lish Reformation on ecclesiastical courts and marriage law 20 id. Lord Hardwicke's Marriage Act, 1753 22 3. Lord Russel's Marriage Act, 1836 26 4. Marriage Act of 1898 30 5. Recent marriage legislation 31 6. Relation between English and Canadian marriage law 32 Chapter 3. HISTORY OF ECCLESIASTICAL MARRIAGE LEGISLATION IN CANADA 34 1. The form of marriage 34 2. Publication of banns 45 3. Consent of parents 46 TABLE OF CONTENTS ill 4. Celebration of marriage 43 5. Registration of marriages 49 Chapter 4. HISTORY OF CIVIL MARRIAGE LEGISLATION IN CANHDA 51 Article 1. Newfoundland 51 Article 2. Nova Scotia 56 Article 3. Prince Edward Island 62 Article 4. New Brunswick 66 Article 5. Ontario 70 Article 6* Manitoba 30 Article 7. The Territories 84 1. Northwest Territories 34 2. Yukon Territory 33 Article 8. Saskatchewan 39 Article 9. Alberta 93 Article 10. British Columbia 97 PART II PRESENT LEGISLATION OF THE CELEBRATION OF MARRIAGE IN CANADA Chapter 5. PERSONS AUTHORIZED TO SOLEMNISE MARRIAGES 105 Article 1. Qualifications required of those who wish to solemnize marriages 106 1. Ordination or appointment by a religious body 106 a) Religious body 106 b) Ordination or appointment 108 2. Residence and occupation 110 3- Ag HI 4. Sex 112 TABLE OF CONTENTS iv Article 2. Registration of persons qualified to solemnize marriages 112 1. Application for registration 113 2. Necessity of registration for the validity of marriage 115 3. Protection of clergymen and ministers 116 Article 3. Summary of canonical legislation and com­ parison with civil legislation 117 Chapter 6. PRELIMINARIES BEFORE ISoUE OF LICKNGEb OH PUBLICATION OF BANNS 122 Article 1. Investigations to ascertain freedom of the parties to marry 122 1. Declarations made by the parties 123 a) General affidavit 123 b) Health affidavit 127 2. Documentary evidence 127 a) Birth certificate 127 b) Certificate of death 128 c) Decree of divorce or annulment 130 Article 2. Consent of parents or guardians for the marriage of minors. 132 1. ivinora 132 2. Persons whoso consent is required 133 3. Exceptions 135 4. Minimum age for marriage 140 5. Necessity of consent for a valid marriage 142 Article 3. Premari tal health examinations 144 Article 4. Summary of canonical legislation ana com­ parison with civil legislation 146 1. Investigations to ascertain freedom of the parties to marry 146 TABLE OF CONTENTS V 2. Consent of parents or guardians for the marriages of minors 151 3. Premarital health examinations 152 Chapter 7. PUBLICATION OF BANNS ktV ISSUF OF MARRIAGE LICENCES 157 Article 1. Publication of banns 157 1. Nature and purpose of the publication of banns.... 157 2. Time and place of the publication of banns 153 a) Time of publication 153 b) Place of publication 159 3. Prohibition to publish banns 131 4. Certificates of publication of banns 153 5. Dispensation of banns 154 6. Time of publication of banns before the marriage.. 134 7. Publication of banns as a requirement for the validity of marriage 136 8. Forwarding of material furnishing evidence of freedom to marry 167 Article 2. Issue of marriage licences 170 1. Issuers of marriage licences 171 2. Application for narrlage licences 172 3. Objections to or disputes over the issue of marriage licences 173 4. Issue of marriage licences 174 5. Return of marriage licences 177 6. Necessity of a marriage licence for the validity of marriage 178 Article 3. Summary of ecclesiastical legislation and comparison with civil legislation 179 TABLE OF CONTENTS vi Chapter 8. THE CELEBRATION OF THE MARRIAGE 184 Article 1. Marriage In the presence of a clergyman or minister of religion 184 1. Persons authorized to officiate at the ceremony... 184 2. Presence of witnesses 135 3. Time, place, and manner of celebration 1C6 a) Time 186 b) Place 157 c) Manner 133 4. Exceptional forms 133 a) Special provisions for certain religious societies 133 b) Marriage by proxy, interpreter, etc 19Q Article 2. Marriage in the presence of a civil magistrate 191 1. Preliminaries to a civil marriage ig2 2. Form of a civil marriage 193 Article 3. Marriage according to the common law 195 Article 4. Summary of eccleaiastical legislation and comparison with civil legislation 201 1. Marriage in the presence of a clergyman or minister of religion 201 a) Witnesses 201 b) Time, place, and manner of celebration 202 c) Exceptional forms 205 2. Marriage in the presence of a civil magistrate., g^ TABLE OF CONTENTS Vli Chapter 9. REGISTRATION AND PENALTIES 213 Article 1. The registration of marriages 213 1. Registration in church records 214 a) Supply, custody, and property of registers 214 b) Method of registration 216 c) Inspection and return of marriage registers.... 216 2. Registration with civil authorities 217 3. Certificates of marriage 220 Article 2. Penalties for failure to observe marriage laws • 221 Article 3. Summary of eoolesiastical legislation and comparison with civil legislation 224 CONCLUSION 228 BIBLIOGRAPHY 231 FOREWORD The purpose of this dissertation la to make a comparative study of the civil legislation of tht* provinces and ti.o ter­ ritories of Canada and the ecclesiastical legislation of the Code of Canon Luw on the celebration of marriage. This study does not include the oivil province of Quebec because a com­ parative study of the civil code of that province and the Church Law on the form of marriage has already been made in a thesis entitled La Form du w&rlago daaia la province de Quobeo by Rev. Paul-^mlle Oiroux, J.CD., University of Ottawa, 1950. Quebec is the only province that has a civil code, and there­ fore a special treatise en the form of marriage in that prov­ ince was advisable. The marriage legislation in quite uniform in the other provinces and the territories of Canada, but there are minor differences which will later be pointed out in this study. Not all the prescriptions of the civil law or of Canon Law which concern matrimony *rill be treated here, but only those will bo included which concern the celebration of mar­ riage in a special way. Therefore, the chief points to be considered are the persona authorised to perform the marriage ceremony, the preliminaries required before the celebration of the marriage, the Juridical form of marriage, the regis­ tration of marriages, and the penalties for failure to observe the marriage laws. It includes all those elements which are within the competence of the provincial legislatures to regulate. FOREWORD ix Such questions as the mutual rights of husband and wife, the possession of property, and other civil effects will not be included in this study. Part I of this dissertation deals with the historical development of the marriage legislation in Canada. A chapter is devoted to the marriage law of England because of its relation to the marriage law of Canada. The following chapter traces the main points of the ecclesiastical law on the cele­ bration of marriage In force in Canada before the promulgation of the Code of Canon Law. The fourth chapter gives a brief but fairly complete account of the development of the marriage legislation in each of the provinces and the territories. Part II of the dissertation Is devoted to an explanation of the present civil law of the provinces and the territories on the celebration of marriage. Each ohapter In this part contains a summary of the ecclesiastical law on tne matter and a dis­ cussion of the principal differences and conflicts between the civil and the Canon Law. Frequent references will be made to judicial decisions of the civil courts and to the Statutes of the various prov­ inces and the Ordinances of the territories. Special methods of making citations of such sources have become generally accepted.