NOTES
The Validity of “Common Law” Marriages
The Case
The Saskatchewan Court of Appeal recently had occasion to
consider the validity of so-called common law marriages in the case
of Ex parte Cot9.’
The case came before the court on appeal from a judgment
of MacDonald,J. of the Court of Queen’s Bench,2 who had granted
an application of Barbara Anne Cotd for a writ of habeas corpus
ad subjiciendum after she had been remanded to custody and
cited for contempt by a judge of the Magistrates’ Court for her
refusal to testify at the trial of one Wilfred Severight.
Although not married in accordance with the provisions of
the Marriage Act,3 Barbara Anne Cot6 claimed she was the “wife”
of Wilfred Severight and hence, on the basis of section 4 of the
Canada Evidence Act,4 not a competent or compellable witness
for the prosecution. The relevant provisions of section 4 of the
Canada Evidence Act read as follows:
4(1). Every person charged with an offence, and, except as otherwise
provided in this section, the wife or husband, as the case may be, of the
person so charged, is a competent witness for the defence, whether the
person so charged is charged solely or jointly with any other person.
(2). The wife or husband of a person charged with an offence against
section 33 or 34 of the Juvenile Delinquents Act or with an offence against
any of sections 143 to 146, 148, 150 to 155, 157, 166 to 169, 175, 195, 197,
200, 248 to 250, 255 to 258, 289, paragraph 423(1)(c) or an attempt to
commit an offence under section 146 or 155 of the Criminal Code, is a
competent and compellable witness for the prosecution without the con-
sent of the person charged.
(3). No husband is compellable to disclose any communication made to
him by his wife during their marriage, and no wife is compellable to
disclose any communication made to her by her husband during their
marriage.
‘Ex parte Cotg, (1971) 22 D.L.R. (3d) 353, (1971) 5 C.C.C. (2d) 49, [1971]
4 W.W.R. 308 (Sask. CA.).
2Ex parte Cotg, (1971) 19 D.L.R. (3d) 486 (Sask. Q.B.).
3 The Marriage Act, R.S.S. 1965, c. 308.
4 Canada Evidence Act, R.S.C. 1952, c. 307; now R.S.C. 1970, c. E-10.
McGILL LAW JOURNAL
[Vol. 19, No. 4
Although it never appeared in the reports for what offence
Wilfred Severight was being prosecuted, counsel for the Crown
and Ms. Cot6 agreed that she could not be a competent and
compellable witness for the prosecution if she were the “wife”
of Severight.
The circumstances of the relationship between the parties are
outlined by MacDonald,J. as follows:
Barbara Anne Cot6 met Wilfred Severight in or about the year 1966. They
are both Treaty Indians and reside on the Cot6 Indian Reservation near
the town of Kamsack, in the Province of Saskatchewan. In 1967 Barbara
and Wilfred decided to live together as husband and wife. She informed
her parents and they agreed. Wilfred asked his parents and they agreed.
Barbara and Wilfred moved into the home of Wilfred’s parents. At that
time, 1967, Barbara was approximately 16 years of age and Wilfred was
approximately 20 years of age. The couple lived with Wilfred’s parents
for about a year when they obtained a house of their own and have
lived in it since that time (1968). They have two children, Josephine
born on January 2, 1969, and Emile, born December 15, 1969. Barbara
said that she and Wilfred agreed to live with each other forever and had
no intention of going through any form of marriage.5
Additional evidence concerning their relationship was given
by a community development worker, Rev. Clifford Lloyd, who
had worked on the Cot6 Reserve from 1967 to 1970. He knew
Ms. Cot6 and Severight and considered them married. He testified
that perhaps half the couples on the reserve were so “married”,
and that such marriages, in the words of MacDonald,J., “were
generally accepted on the reserve”.6 The provincial Department
of Welfare recognized them as a “unit”, but the basis of this
determination was unknown. The federal Department of Indian
Affairs, on the other hand, listed the two persons individually. The
only evidence adduced to prove the existence and substance of
Indian marital customs was that “the two persons concerned
agree(d) to live as man and wife forever and asked for their
parents’ consent”V
MacDonald,J. began his consideration of the issue before him
by first referring to Coffin v. The Queen,” a decision of the Quebec
Court of Appeal. In that case, the appellant, James Coffin, lived
with a woman known as Marion Petrie Coffin. The couple were
not married according to law. One of the arguments advanced on
5 (1971) 19 D.L.R. (3d) 486, at p. 487.
6 (1971) 19 D.L.R. (3d) 486, at p. 488.
7 (1971) 19 D.L.R. (3d) 486, at p. 488.
8 Coffin v. The Queen, (1955) 21 C.R. 333 (Que. C.A.).
19731
NOTES
behalf of Coffin in the appeal was that testimony given at trial
by Marion Petrie Coffin should not have been admitted in evidence.
Mr. Justice Hyde dealt with this contention by noting that the
provisions of section 4 of the Canada Evidence Act are exceptions to
the general rule that all persons are competent to testify. Because
there is a specific reference to “husband” and “wife” in section 4,
and because the section is exceptional, no meaning other than the
precise legal definition of the terms could be accepted. Hence,
Marion Petrie Coffin was not the “wife” of James Coffin.’
In his reasons for judgment, Mr. Justice Rinfret rejects the
notion of the validity of common law marriages when he says:
… dans la province de Qudbec, le seul mariage qu soit reconnu est celui
qui est cdl6br6 suivant les prescriptions et les formalits 6dictdes par le
code civil.
Le mariage, pour 6tre valide, doit 6tre cdl6br6 publiquement devant
un fonctionnaire reconnu par la loi (art. 128 et 129).
Nul autre mariage, dans la province de Qudbec, n’est reconnu par
le code.10
Rinfret,J. outlined the elements of a common law marriage as
defined by Corpus Juris, which can be summarized as follows:
–
In the absence of a statute otherwise providing, neither solemnization
nor adherence to a particular form are required;
-There must be actual and mutual agreement by parties capable in law
of contracting to enter into a matrimonial relationship that is perma-
nent and exclusive of all others;
– The marriage must be consummated by cohabitation, or by mutual,
open assumption of marital duties;
-There must be mutual consent to the constitution of marriage.”
Rinfret,J. rejected the validity of the theory cited in Corpus Juris
and found that James Coffin and Marion Petrie Coffin were not
husband and wife.’2
Despite this rather unambiguous holding of Hyde and Rinfret,
JJ., MacDonald,J. apparently accepts the assertion in Corpus Juris
that common law marriages are valid in Canada,13 and proceeds to
examine some analogous cases.
9 (1955) 21 C.R. 333, at p. 343.
10 (1955) 21 C.R. 333, at pp. 366-67.
11 (1955) 21 C.R. 333, at p. 369, per Rinfret, J., citing 38 CJ., at p. 1316, paras.
89-90.
12 (1955) 21 C.R. 333, at p. 369, per Rinfret, J.:
Il est donc 6vident que, m6me si 1’on admettait la th~orie de l’appelant
(ce que je n’admets pas) ….
13 38 C.J., at p. 1316, para. 88.
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[‘Vol. 19, No. 4
In R. v. Williams,4 a couple were “married” according to Indian
custom 20 years prior to the trial of the husband for murder.
From this relationship several children were born. Despite the fact
that the woman had “redeemed” herself, that is paid the man
two or three times the amount he paid to her guardian at the time
of the marriage, Gregory,J. decided, without reasons, that the
woman was not a competent witness for the prosecution.
In R. v Nan-E-Quis-A-Ka,5 an Indian couple consented to live
together, and according to Indian custom, this constituted marriage.
Westmore,J. held the relationship to be a “legal and binding
marriage”, and thus rejected the evidence tendered by the wife
at the trial of the husband.
In Re Noah Estate, 6 Sissons,J. was called upon to decide
whether the estate of a male Eskimo, who died intestate, would
devolve to his “wife” (married according to Eskimo custom) and
their children, or to his collateral relations. The learned judge
found the marriage was valid according to Indian custom, being
a voluntary monogamous union.
MacDonald,J. concluded his reasoning by noting that the
provincial Marriage Act 7 neither prohibited nor invalidated such
“marriages” as existed between Ms. Cot6 and Severight, nor did
the federal Marriage Act 18 define marriage.
The application for habeas corpus was accordingly granted and
Ms. Cot6 was released from custody.
In the Court of Appeal, Maguire,J.A. “I began by referring to
the notes of Rinfret,J. in Coffin 20 and questioned the accuracy
14R. v. Williams, (1921) 37 C.C.C. 126 (B.C. Sup. Ct.).
15 R. v. Nan-E-Quis-A-Ka, (1889) 1 Ten-. L.R. 211 (Ct. N.W.T.).
10Re Noah Estate, (1961) 32 D.L.R. (2d) 185 (N.W.T. Terr. Ct.).
17 R.S.S. 1965, c. 308.
1SMarriage Act, S.C. 1967-68, c. 24, s. 24(2); now R.S.C. 1970, c. M-5.
-9 Ex parte Cotd, (1971) 22 D.L.R. (3d) 353 (Sask. C.A., Maguire,J.A., deliv-
ering the judgment of the Court, Woods and Hall,JJ.A. concurring).
20 (1955) 21 C.R. 333. Maguire,J.A. believed that the judgment of Rinfret,J.
was open to the construction that had more evidence of a permanent marital
relationship been present, Rinfret, J. “might have held that a valid marriage
at common law had been established”. Such a view, it is submitted, is difficult
to reconcile with the words of Rinfret, J. cited supra, n. 10. Article 159 of the
Civil Code is also of interest on this point. It reads:
No one can claim the title of husband or wife and the civil effects of
marriage, unless he produces a certificate of the marriage, as inscribed
in the registers of civil status, except in the cases provided for in article 51.
Article 51 merely provides for a means of proving acts of birth, marriage, and
death when registers of civil status have either not been kept or are lost.
1973]
NOTES
of the statement in Corpus Juris that “in Canada informal marriages
are valid”. The cases cited thereat, according to the learned justice
of appeal, “fail to establish this broad statement”.21 Moreover,
Maguire,J.A. considered it important to distinguish between the
kind of marriage defined in Corpus Juris and common law relation-
ships, which latter could never be viewed as a valid marriage.
The case of Hyde v. Hyde and Woodmansee which contained
the statement that “marriage, as understood in Christendom, may
for this purpose be defined as the voluntary union for life of
one man and one woman, to the exclusion of all others”, was
rejected as inapplicable to the instant case as dealing not with
what constituted the validity of common law marriages, but with
the jurisdiction of English courts concerning a Mormon marriage
in Utah.
What, then, does constitute a marriage valid at common law?
Maguire,J.A. finds the answer in R. v. Millis,2 where, he says,
it was established that “the common law of England required that
verba de praesenti24 must be pronounced in the presence of an
episcopally ordained priest in order to constitute a valid marriage”.
This latter decision, according to Merker v. Merker,26 is binding
law. However, as Sir Jocelyn Simon,P. notes, the intervention of
the Marriage Act (1753)27 and its successors has limited the effect
of the decision to instances where the Marriage Act (U.K., 1949) 28
does not apply, and to locales where no other relevant local law
2138 C.T., at p. 1316, para. 88: Johnston v. Hazen, (1914) 43 N.B.R. 154, which
decided that a common law marriage, valid in the State of New York, was
valid in New Brunswick; Robb v. Robb, (1891) 20 O.R. 591, which held that
the daughter of a man who was married according to Indian custom was a
legitimate child and a legal heir; Lawless v. Chamberlain, (1889) 18 O.R. 296,
which was an action in declaration of nullity on the ground of coercion; Doe
d. Breakey v. Breakey, (1846) 2 U.C.Q.B. 349, which raised the question of the
validity of a marriage performed by a Presbyterian clergyman in Ireland; and
Connolly v. Woolrich, (1867) 11 U.C. Jur. 197 [sic, the correct citation is 11
L.C. Jur. 197], which considered the validity of a marriage between an Indian
and a non-Indian performed according to Indian custom.
22 Hyde v. Hyde and Woodmansee, (1866) L.R. 1 P. & D. 130.
23R. v. Millis, (1843) 10 Cl. & Fin. 534, 8 E.R. 844.
24 When the parties exchange the words of consent to marry.
25 (1971) 22 D.L.R. (3d) 353, at p. 357.
26 Merker v. Merker, [1962] 3 W.L.R. 1389, at p. 1394.
27An act for the better preventing of clandestine marriages, (1753), 26 Geo.
2, c. 33 (Lord Hardwicke’s Act).
2 8 Marriage Act, (1949), 12 & 13 Geo. 6, c. 75.
McGILL LAW JOURNAL
[Vol. 19, No. 4
governing marriage is in force. 9 Thus, in the United Kingdom
itself, the relevant statutory provisions must be adhered to in
order for a marriage to be valid.
Finally, Maguire,J.A. rejected the argument advanced by counsel
for the respondent that because the provincial Marriage Act 30 does
not prohibit the solemnization of marriage in the form undergone
by Ms. Cot and Severight, that it is consequently valid.
Comment
It is submitted that the view adopted by the Saskatchewan
Court of Appeal was correct in law.
Not only had the parties not been married in conformity with
the provincial Marriage Act,3 1 their relationship did not even fall
within the criteria established in the Millis case. Furthermore, the
argument that the provincial Marriage Act 3 2 did not prohibit such
marriages was bound to fail as the act in question exhausts the ways
in which a marriage can be solemnized, even to the extent of having
special provisions for members of the Doukhobor sect.3 3 It therefore
follows that the appeal of the Crown was properly allowed and
the decision of MacDonald,J. to quash the conviction of Ms. Cotd
set aside.
While conceding that the law was properly applied, there is
nonetheless cause to consider whether the law, in the circumstances,
produced a desirable result. It would appear from the facts that Ms.
Cot6 and Severight were certainly “married” in the non-technical
sense of the word. At the time of the appearance at the trial of
Severight, the couple had been living together for four years
(three of the years in their own home) with the consent of their
parents, and had two children born of their relationship. Certainly,
the nature of the relationship was more than casual, indeed, it is
reasonable to infer from all the facts that they intended to live
together as husband and wife permanently. All that was lacking
to validate their marriage in the eyes of the law was compliance
with the appropriate provincial legislation. In such circumstances,
29 The examples given are: in British colonies where the Common Law
prevailed; in countries where by capitulatory agreement the Crown exercised
jurisdiction over British subjects; in Her Majesty’s ships of war and British
merchant ships outside foreign territorial waters; and within the lines of
British armies.
30 R.S.S. 1965, c. 308.
31 Ibid.
32 Ibid.
33 Ibid., s. 41.
19731
NOTES
it is submitted, the law unduly penalizes the parties when persons
such as Ms. Cot6 are not afforded the protection provided in the
Canada Evidence Act,3 4 especially when it is considered that her
lifestyle would not have been altered in the slightest had she been
married according to law.
It is submitted that the result of the case is an undesirable
one in instances where the parties involved: 1) are capable of
contracting marriage, or, not being capable, have their parents’
consent; 2) have mutually agreed to live with each other perma-
nently and exclusively of all other relationships; and 3) are co-
habiting and openly assuming recognized marital duties towards
each other and their children.
It is clear from the instant case, however, that it is not open
to the courts to reach such a decision. Legislative intervention
is required.
A sensible course of action would be for Parliament to amend
section 4 of the Canada Evidence Act 5 by adding thereto an inter-
pretative sub-section which would define “husband” and “wife” as
including not only those persons validly married according to law,
but also those persons who could demonstrate to the satisfaction
of the court that: 1) they were of majority age or had obtained
their parents’ consent; 2) they were not otherwise married; 3) they
had agreed to cohabit with each other permanently and to the
exclusion of all other relationships; and 4) they had openly assumed
marital duties towards one another and their children (should
there be any). The proposed addition to the Act would well be
completed by requiring that the burden of proving the existence
of such a relationship as contemplated would be placed on the
party who sought to invoke it. 6
34 R.S.C. 1970, c. E-10.
35 Ibid.
36 The recommendation which this note proposes is specifically limited to
the problem raised in the case under review. When formulating what recom-
mendation should be made, various alternatives were considered, such as
an appropriate amendment to the federal Marriage Act, R.S.C. 1970, c. M-5, or
the Interpretation Act, R.S.C. 1970, c. 1-23. However, the consequences of such
proposals extend far beyond the issue presented by Ex parte Cotd. For exam-
ple, how might a universal application of the recommendation affect the
provisions of the new federal Income Tax Act, S.C. 1970-71-72, c. 63, regarding
transfers of property between spouses? The author does not pretend to have
undertaken a survey of all federal or provincial legislation where marital
relations are in some way involved. However, the absence of such a mammoth
undertaking does not, it is submitted, in any way diminish the salutory effect
of the present recommendation limited to the Canada Evidence Act, R.S.C.
1970, c. E-10.
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By imposing such evidentiary requirements, the sufficiency of
which would be determined by the court, the law would not be
available for use by persons who cohabit in a casual or non-perma-
nent nature. However, persons such as Barbara Anne Cotd, who was
married in every sense of the word excepting the necessity of
solemnization, would be afforded the protection of the law that
only a mere technicality now denies them3 7
Allan Hilton *
37 It
is interesting to note, however, that the Criminal Code, R.S.C. 1970,
c. C-34, also employs the words “husband” or “wife” in section 143 (rape),
section 146 (statutory rape), section 148 (intercourse with the feeble minded),
and section 158 (excepting the offences of buggery and gross indecency in the
cases of husband and wife, and consenting persons over 21 years of age).
Presumably, a couple not married according to law but cohabiting could be
involved in any of these offences in circumstances where the offence(s) could
be proved. In order to eliminate this apparent anomaly, the same suggested
addition to the Canada Evidence Act could be added to section 138 of the
Criminal Code, which is the interpretative section of Part IV of the Code
(Sexual Offences, Public Morals, and Disorderly Conduct).
*B.C.L., McGill University.
