Here's why your Zoom wedding might not stand up in court

Special to the National Post

Spring is wedding season — or at least it was, before the pandemic hit.

Couples who have had venues booked and plans in place for many months have been faced with a choice of either postponing their marriages indefinitely or making alternative plans.

In Ontario, provincial regulations preclude gatherings of more than five people unless they are from a “single household,” making even the smallest wedding a practical impossibility. Under Ontario’s Marriage Act, in order to have a valid marriage, the couple needs a licence, an officiant and two witnesses, and the wedding must take place “in the presence of” the officiant and the witnesses.

Given the reduced operations of most government offices, many towns and cities have stopped issuing marriage licences. And while the maximum number of people allowed to gather (at a safe distance, of course), happens to correlate with the precise number necessary for a wedding ceremony, the dynamics between family and friends make leaving important people out of a ceremony problematic.

What is a couple to do?

Many people are opting to “get married” without a marriage licence. Others have had the officiant marry them by Facetime so that they could have more people present in person. Still others have had their weddings in a church parking lot while friends and families share in the event — from their cars.

While a wedding could bring much needed joy into the lives of families and friends during this period of social isolation, there can be legal ramifications if a couple marries without a licence or has witnesses or the officiant participate remotely.

In Ontario, a marriage licence can only be issued by a local municipality. A licence is required to ensure that the parties are legally entitled to marry: they cannot be minors or related and they must be single, divorced or widowed. After the marriage takes place, certain forms must be filed with the provincial Registrar General, which keeps the records of marriages, births and deaths.

The Marriage Act also prescribes who can officiate at the ceremony.

Given the law, is a Facetime or Zoom wedding valid? And what about those weddings where the couple didn’t bother with a marriage licence?

A marriage is ‘void or voidable’ unless it was entered into in good faith by the spouse seeking to rely on the marriage.

If good faith exists, that spouse will have the benefits of the family law legislation which takes effect on separation. These legal rights are significant, and include equalizing the property accumulated during the marriage and rights to claim spousal support. While there have not yet been any cases decided by the courts on marriages that are taking place during the pandemic, this issue has previously confronted our courts.

In Debora v Debora, a case decided by the Ontario Court of Appeal in 1998, the couple was married in a religious ceremony. Just prior to the ceremony, the husband asked the wife to delay getting a marriage licence so he could continue getting his widower’s pension. Several years later, they married in a civil ceremony. Between the date of the religious marriage and the civil ceremony, the husband acquired significant assets, and the parties later separated. The wife took the position that she had entered into the marriage “in good faith” and that the religious ceremony should be deemed to be their date of marriage.

The wife wanted this declaration from the court as, with limited exceptions, the law does not equalize assets which a spouse owns on the date of marriage. If the religious ceremony was entered into in good faith by the wife, she would receive a considerably higher equalization payment.

The Ontario Court of Appeal held that as the wife knew that there was no marriage licence when they married in the religious ceremony, she could not rely on the “good faith” provision of the Family Law Act.

By contrast, in Matthews v Mutiso, where neither spouse knew that their officiant was not authorized to perform marriages, the court declared that the parties’ marriage had been entered into in good faith because neither knew the officiant was unauthorized, as they had intended to comply with the Marriage Act and as they had lived together as a married couple afterwards.

But what about the couples whose witnesses or the officiant are present by Facetime or Zoom? Is their personal presence required?

The Marriage Act not only requires that the marriage occur in the presence of the witnesses, but also that the witnesses must “affix their names … to the entry in the register made” under the Act.

In Ontario, under the Emergency Management and Civil Protection Act, the legal requirements for making and witnessing a will or powers of attorney have been changed by regulation due to the pandemic. For the “duration of the emergency,” witnesses to a person making a will or powers of attorney can “be satisfied by means of audio-visual communication technology.” The Law Society of Ontario has established best practices for lawyers and notary publics when taking their oaths by Facetime or Zoom.

But no similar regulations have been implemented for marriage ceremonies.

At the moment, it should be presumed that officiants and witnesses must still be physically present and must sign the register for there to be a valid marriage.

To do otherwise will certainly complicate matters in the future.

This article originally appeared in the National Post.