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Simple answers to Complex Questions and Complex Answers to Simple Questions. In real life, I'm a Greater-Toronto (Canada) Realtor with RE/MAX Hallmark Realty Ltd, Brokerage. I first joined RE/MAX in 1983 and was first Registered to Trade in Real Estate in Ontario in 1974. Formerly known as "Two-Finger Ramblings of a Forensic Acuitant turned Community Synthesizer"

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Saturday, January 01, 2011

'Married' Property Rights - loophole - not serious, but interesting!

Weisleder: Religious marriage does not include property rights

Highlight/Summary --However, if you are married in Ontario in a religious ceremony only(ie w/o also having an Ont Civil License), you will have the same rights as a common-law couple, which means no rights to property.

A recent case has confirmed the principle that two people who choose to marry in a religious ceremony in Ontario, without obtaining a civil marriage licence, will acquire no property rights should they later separate.
Merv Burgard, Q.C., forwarded to me a decision released June 28, 2010, where a couple was married in 2004 in Toronto by a Muslim religious leader under Sharia law. The parties later separated and the issue was whether the woman was entitled to an interest in a condominium owned by the man she lived with, claiming it to be a matrimonial home. The parties never took out an Ontario marriage licence.

The woman claimed that the parties were married in 2005 by a judge in Abu Dhabi, United Arab Emirates, and thus she was legally married. Her partner claimed that they only attended in Abu Dhabi to register the Ontario marriage to please her family and that no new marriage was entered into.

The judge found that no marriage had taken place in Abu Dhabi. He also quoted the Marriage Act of Ontario which states that “no marriage may be solemnized except under the authority of a licence issued in accordance with the Act. Since the parties did not obtain a civil marriage licence in Ontario, the woman’s claim was denied.

As a precedent, the judge referred to a prior decision released in 1999 involving a Jewish couple who were married in 1987 in a religious ceremony, and who later married in a civil ceremony in 1994. Between these two dates, the husband acquired substantial assets. The spouses later separated and the wife wanted the assets to be equalized from the date of the original religious marriage in 1987. She tried to support her claim with evidence that her husband had told her that the only reason he did not want to marry in a civil marriage in 1987 was so that he could continue to receive widower’s benefits but that he would always treat her as his married spouse.

The judge did not accept this evidence and again, since the parties did not enter into a civil marriage until 1994, that was the date chosen for the equalization of assets.

It is interesting to note that if a couple is married in a country outside Canada in a religious ceremony that is recognized as a marriage in that country, and then they immigrate to Ontario, they will be recognized as married spouses under the Ontario Family Law Act and be entitled to an equalization of property. However, if you are married in Ontario in a religious ceremony only, you will have the same rights as a common-law couple, which means no rights to property.

This is a reminder that if you are planning to move in with someone and are contemplating buying real estate, you should get your name on title to the property. That is the way to protect your interests.

The moral of this story is that if you are thinking about a religious marriage in Ontario, make sure that it includes a trip to city hall to obtain a marriage licence.

Mark Weisleder is a lawyer, author, course developer and public speaker for the real estate industry. Visit him online at www.markweisleder.com.


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