Proxy Marriage

[armoured]

There was likely a lot more flexibility during Covid so in many ways you did get lucky.

I would guess that the lawyer's approach was that if the proxy marriage was considered not valid, then neither party is married under Canadian law and they can just (re)marry / physically present. And not a lawyer, but that makes some sense.

But the issue most will face - as @CHRoua seems to have above - is that you probably can't do that in any jurisdictoin where you're already married (of course). And I'd also guess that even in places that don't recognize the proxy marriage, authorities may refuse to marry a couple that claims to be married legally in some other jurisdiction (i.e. 'jurisdiction shopping' may not work).

So even if that worked in a specific case above, I think the basic advice (apart from DO NOT DO A PROXY MARRIAGE) in most cases is going to be that the couple will have to divorce and remarry (or equivalent, eg annulment).

(Or common law as noted above)

 

[armoured]

The one aspect of armoured's post which I would not expect to prevail is this:

I would not expect a jurisdiction to say they do not recognize proxy marriage but then refuse to perform a marriage on that ground. If it's not a legal marriage, it's a thing writ in water, and I would not expect any jurisdiction to recognize it for some purposes but not for others.

I don't think this is the correct act to cite from, and indeed it may not be a provincial act (but federal or possibly customary law); the issue here is not whether a proxy marriage can be performed in BC (which this act does address), but whether a proxy marriage from a foreign jurisdiction would be recognized as a valid marriage. (Leaving out the IRCC recognition of such marriages as a given in this context)

What we know from the BC act in this regard is only that one "must not solemnize a marriage between 2 parties who have previously been married to, and are not divorced from, each other in accordance with the laws of any country, state or province".

I read that as pretty open and shut: if the marriage was legal where it was performed, it is sufficiently legal to prevent (re)marrying, because the act specifically says so. With the big proviso: unless of course if other parts of the legal system that treat specifically the recognition of marriages address that. (As I believe is the case for eg bigamy/polygamy).

I would hope that if my reading is correct, ie that the previous (proxy) marriage prevents re-marrying, that it would also allow the couple to get divorced in BC (and then remarry) like any other.

[Short digression that I think applicants for marriage licenses have to at minimum swear they're not married to others, and I assume that not telling the truth about a previous proxy marriage is not advisable.]

Anyway, as you note, a lawyer can argue a point that's not the strongest, and there is indeed (in my view) a bit of a legal collision inherent in recognizing a proxy marriage for one purpose (preventing remarrying) but not for another (IRCC sponsorship). Unless this is addressed elsewhere, ))).

Advice still the same: avoid proxy marriages. If already there, you probably have to get divorced and remarry (in whatever jurisdiction will take the divorce action acc to residency etc). Or wait until common law.

 

[armoured]

And sorry that was kind of just an attractive distracter of a topic. Can be safely ignored.

 

[CHRoua]

I am a lawyer and I agree that, under Canadian law, a proxy marriage is not a valid marriage, at least not in my home jurisdiction of British Columbia. As for an online marriage...maybe. What constitutes a valid marriage in British Columbia is prescribed by the Marriage Act. It provides, in part:

Requirements as to witnesses and public ceremony
9 (1)All marriages solemnized under this Act by a religious representative must be in the presence of 2 or more witnesses besides the religious representative.

(2)The ceremony must be performed in a public manner, unless otherwise permitted by licence.

(3) Both parties to the marriage must be present in person at the ceremony.

(Italics added)

The Act in full is here: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96282_01#section10

The Act does not define the term "present", as in "must be present in person". It would seem clear that having someone stand in as proxy won't pass muster. On a somewhat different note, I think the Act was probably proclaimed before anyone thought of online marriages. The words "present in person" could, arguably, be met where the parties appear on videolink together. That would not, to my mind, be a very convincing argument in favour of marriages performed by "WebWed" and such outfits. But yes, the argument could be made. Lawyers are trained to argue the unarguable when needed.

In any event, the IRCC has ordained that both proxy marriages online marriages are not real marriages and I am aware of no Canadian law contra. Thus, I find myself in respectful agreement with armoured that "if the proxy marriage was considered not valid, then neither party is married under Canadian law and they can just (re)marry / physically present."

The fly in the ointment for some here, who apparently married in countries were proxy (or online) marriages are legal, and the marriage has been registered by local authorities, then the law there might well not permit a re-do. The Marriage Act of BC addresses this little wrinkle thus:

Marriage of persons previously married to each other
22 (1)A religious representative or marriage commissioner must not solemnize a marriage between 2 parties who have previously been married to, and are not divorced from, each other in accordance with the laws of any country, state or province except

(a)as provided in section 21, or

(b)if an order is issued under subsection (2).

(Italics added)

Anyone stuck in that kind of regime will, I would say, have to go through a divorce before new marriage. One way around that might be to sneak off to one of the many countries around the world that allow foreigners to marry within their borders and get married there without saying anything about the proxy marriage. One would then procure a marriage certificate from that country, drop it at the feet of the IRCC, and go away with tail wagging.

The one aspect of armoured's post which I would not expect to prevail is this:

I would not expect a jurisdiction to say they do not recognize proxy marriage but then refuse to perform a marriage on that ground. If it's not a legal marriage, it's a thing writ in water, and I would not expect any jurisdiction to recognize it for some purposes but not for others.

Oh what a tangled web we weave...

As I said I’m about Do divorce after my proxy marriage on 2020 and the refusal of my wife’s paper on 2022 and I’m wandering haw should I describe my divorce on one of this IMM forms ? And is any chance to refuse it again because of the divorce ?

 

[armoured]

You have, I suppose, two choices: (1) Follow the tortuous route advocated by armoured and get a divorce, but that in itself calls for the careful manoeuvring since it's a bit of a strange circumstance to be getting a divorce for the sole reason of keeping the bureaucracy in some foreign jurisdiction happy; or (2) Follow Noraalzomor's lead, forget the divorce idea and get married elsewhere. I see that as far and away the better choice. The only way it might not be is if the country that accepted your proxy marriage grants divorces, quick and dirty on demand, no questions asked and at modest cost. Then sure go that route.

I actually mostly concur on this - I think a misunderstanding crept in about substance (aside from hypothetical discussion) that doesn't apply to this case.

My only comment is on (2) - I do not know how many jurisdictions and certainly which ones would allow a non-resident couple to marry AND which ones allow couples that are already married to (re)marry.

That loops back to an issue that might be very hard to determine in advance, whether those jurisdictions require some proof of not being married, or a sworn 'no impediment to marriage' statement*, or similar (in addition to the usual stuff about whether non-residents can be married there, etc). And note, in a third-country jurisdiction, both members of the couple would have to demonstrate this (if required). It follows from this that in practice it may not only be difficult and potentially more time-consuming than divorce, but also rather hard to actually find a jurisdiction where this works. It is after all a bit of an unusual case.

So for @CHRoua : if you are now at the point where the divorce is already complete, go ahead and complete that. Once that's in hand, you can get married as you'd planned. (If indeed it is possible for you to remarry somewhere without divorcing, sure, do that)

As for what to tell IRCC: I'd suggest telling the truth in a short letter of explanation is the best. Stick to the facts: we got married by proxy as we were unaware this would not be accepted by IRCC, and to resolve the issue, we got divorced and then remarried.


(*This does relate to the above in an obscure way to the other discussion, i.e. about whether it's advisable to swear you are not married when you are, despite questions about validity of the marriage. But I think that's a discussion for the margins not the person who requested info)

 

[armoured]

I question why you say the Marriage Act reference is in error. Can you name an act more authoritative? The provinces decide how a marriage is to be solemnized. Parliament has constitutional jurisdiction over marriage and divorce, but has addressed only such matters as legal age for marriage, whether same sex marriage is allowed, etc, and it has plenary jurisdiction over divorce.

Also you say the issue is "whether a proxy marriage from a foreign jurisdiction would be recognized as a valid marriage." I am not so sure that I failed to grasp the issue, since I do not see that as the issue.

I think wires in this discussion crossed a bit, as to whether discussing specific cases or hypotheticals such as eg a couple married-by-proxy elsewhere attempting to get married in BC (which is the case i was sort-of referring to). My comment overstated what 'the issue is' - at least as it applies to the actual case of the person in this thread - so indeed much of this is perhaps just a digression (although potentially important to some).

From what I understand, IRCC used to recognize proxy marriages (ages ago) but changed that (in 2015 or so?). I believe that means that 'Canadian law' (generally) doesn't outright prohibit recognition of proxy marriages, and it's a policy decision by IRCC for purposes of sponsorship.

So:
-As I read the Marriage Act, its purpose is primarily to determine what marriages can be performed in BC by law (and how, etc). [Of necessity this is a simplification, without the details of licensing, solemnization, registration, etc.]
-It does not specifically address what marriages performed in other jurisdictions will be recognized as valid, nor divorce, etc - apart from S.22, 'Marriages of persons previously married to each other.' But the purpose of the statement to that effect ('who have previously been married to, and are not divorced from, each other in accordance with the laws of any country, state or province' [with small exceptions that aren't I think relevant]) is limited only to this question of (re)marrying individuals already married to one another.

But it's even easier than that: the Marriage Act specifically tells us which acts/laws regulate validity of marriages (see S.6, 'In matters not provided for...'): "Subject to this Act and any Act of Canada in force in British Columbia, the law of England as it existed on November 19, 1858 prevails in all matters relating to the following: ... '(b) the validity of marriages.'

I presume/believe these other acts (whichever are in force) address the specific issue of which foreign marriages are recognized as valid - and while IRCC may not recognize proxy marriages for the purposes of immigration, I can't find a definitive statement that a proxy marriage performed in a jurisdiction where that is allowed is outright legally invalid in Canada.

My presumption is that it's the opposite. They are recognized in Canada, just not by IRCC for immigration purposes, and that makes life difficult for some.

Or restated: BC does not provide for completion of a marriage by proxy, and one performed by proxy in BC will not be recognized. But that doesn't tell us a proxy marriage from elsewhere isn't valid - it's not covered in the act.

[Side note that my understanding is this is quite different from polygamous marriages not being valid, which aren't recognized because not within the definition of marriage - i.e., the mechanism by which a polygamous marriage is considered invalid in Canada doesn't provide any guide to the proxy marriage question.]

If you thinking the practical solution taken, and which I endorse, is somehow an illegal act, so what? It's a victimless crime. Who really cares?

I'm not sure exactly what statement of mine prompted this, except for my statement about the advisability of swearing a statement about being married or not. (I.e. wherein most jurisdictions including I presume BC one signs paperwork saying one is not married).

So: up to you or anyone involved to decide whether that's advisable, and indeed whether there's any authority or party that would or could challenge or punish that. Yes, arguably a victimless crime.

But I think it's still fair to say (if my above is correct) that even if IRCC doesn't recognize the proxy marriage (for immigration purposes only), that does not mean the marriage isn't valid or recognized in Canada, and that therefore swearing that you are not married is a false statement.

This would pertain to almost any jurisdiction, at least any jurisdiction that requires either demonstrating or swearing that you are not married (all the ones I know but not an expert). That can be more or less complicated depending on the country.

Whether that's worth worrying about, up to each person to decide.

And I'm not clear which of the above applies to the case of Noralzaamor above (who seemingly remarried in some jurisdiction where that was allowed, or just didn't mention the previous marriage-to-the-same-person) - and I'm not arguing against it. It worked. I certainly don't think IRCC has the time to chase or worry about cases where two individuals married each other twice, making both marriages potentially legal; it just doesn't affect IRCC interests.

So, let's suppose we have a couple - a Canadian and a Filipino - married online and they get a marriage certificate from the Philippines Statistics Authority. ... The course of prudence for said couple would be to forget all that crap, shuffle off to Thailand, get married there, and tender their Thai marriage certificate (duly translated, of course) to the IRCC.

If Thailand allows them to marry, great.

Unfortunately, I think if they wanted to get married in BC (for immigration purposes), they would face this collision: BC would probably recognize the PH marriage as valid, iRCC doesn't, and they'd have to either jurisdiction-shop (fly to Thailand), get divorced (somewhere), or swear a false statement (albeit one without any evident victims).

That's obviously a pretty stupid situation to be put in - agree with you there - and not sure what I'd do.

 

[CHRoua]

I am grateful to armoured for his last 2 posts, with which I see little to take issue. Armoured usually does not post nonsense. Overall, I'll grant, much more knowledgeable about immigration matters than I.

Yes, as he says below, there was an element of misunderstanding.

I have no real idea as to how many jurisdictions allow foreigners to come for a visit, get married, then leave. I know of quite a few. I have Canadian friends who have married in places like Las Vegas, Hawaii and Mexico. So, U.S. and Mexico are two.

By way of recent personal experience, I spent some time in the Philippines in 2018, being s place I visit often. On that trip, I met a guy (let's call him "Joe") from Alberta who was there to marry a Filipina ("Jane"). He had been married there once before, in the early 1990s. He had not seen his wife since about 2000 and knew nothing of her whereabouts. He had heard she had completed training as a nurse and had moved to the U.S., but he had no more info. So, he thought he would simply get married in the Phils again and forget about the first marriage. Too much effort to try to track down his wife and to think of putting in the years and money needed for an annulment (plus the risk of it being denied). Yes, maybe finding her in the U.S. and enlisting her cooperation for a divorce there was possible, but by no means a clear path.

What Joe was unaware of is that marriages in the Phils are usually recorded with the Philippines Statistics Authority. I say "usually" because one obtains one's marriage licence locally and, once married, the presiding official will provide the couple with "Certificate of Marriage" issued by the "Office of the Civil Registrar General". I am looking at one on my computer as I write this. It's a very formal, official-looking document. But, unless the couple ensures that it is forwarded to the PSA for registration, for many practical purposes within the country, they are not regarded as married. If you are a Canadian seeking to sponsor a Filipino as a permanent resident, and you say in your application that you married in the Phils, Canada will only accept that as true if you can provide a PSA marriage certificate. The one issued by the Registrar General won't do.

So, to get married in the Phils, Joe and Jane had to take another step. They had to go to a PSA office and apply for a "cenomar" for each of them. It is required before you can get a marriage licence. It means "Certificate of No Marriage". The PSA will search its records and see if there is a record of any previous marriage. Well, wouldn't you know that Joe's marriage from 25 years ago turned up. Cenomar refused. I do not know if Canada required PSA marriage certificates 25 years or so ago, but it never came up for Joe since he never tried to bring Jane to Canada. He was working in the oil sands and Jane had no inclination to move there. So Joe made regular visits to the Phils to be with her. That's probably why they drifted apart, due to the long distance and long absences.

Next came the plan to marry away from the Phils. Not an easy trick for Filipinos, since many countries (eg. Canada) require a visa to enter. One can go online and get a list of countries a Filipino can enter on a Phils passport. Thailand is one. I became involved in the research. Kind of intriguing. Corresponding with lawyers and such was not Joe's forte. So I did some for him. I corresponded with a law firm in Bangkok, a firm I came across through one of its members on a visit there in the past. They sent email, which I still have, advising:

Here are the documents required to proceed with the marriage registration in Thailand:

1.Affirmation of Freedom to Marry or Certificate of No Impediment (You will obtain this document from your embassy in Bangkok only).
2. Certified copy of your passport by your embassy in Thailand
3. Divorce or Death Certificate if you had been married before which ended in either divorce or spousal death. Must be in English or Thai.

Item # 1 requires the Canadian to appear at the Canadian embassy and complete an affidavit of the sort best described on this Phils Canadian embassy website. The embassy in Bangkok explains it too, but the one here is more thorough.

https://www.canadainternational.gc.ca/philippines/consular_services_consulaires/marriage-mariage.aspx?lang=eng

It is interesting to note, as set out there, that Canada, unlike the Phils, has no central registry of marriages. The Canadian government, unlike the Phils, has no way of checking one's marital status, hence it does not issue the equivalent of a cenomar.

Long story short, Joe and Jane went to Thailand, got married and now live in Canada. What Joe did with Jane is quite a different scenario from a discussion about the same couple marrying twice and the propriety of so doing. Joe had to swear a false affidavit. He is, in fact and in law, still married to his partner from the 1990s. Some risks were and are involved. Whether any will ever materialize and cause a problem is unlikely, but possible.

I'll add that Thailand was not the only possibility for marriage. From time there and knowing an attorney there, I was aware that Belize is equally accommodating of foreigners. I emailed my contact there. He wrote back, encouraging Joe and Jane to marry there. My lawyer friend could do it all himself. Lawyers there can marry people. We ruled it out because of the difficulty of travel to Belize. One usually has to touch down in the U.S. first. A Filipino needs a U.S. transit visa just to do that. Thailand was a lot closer and less difficult and expensive to travel there.

A final thought on this. I have not been in contact with Joe and Jane for some time. I did suggest to him way back that as a foreigner, he can divorce someone he married in the Phils, by taking divorce proceedings in Canada, and the divorce will be recognized there. At the time, he just wanted to get things done, to start the sponsorship/application process without delay and more trips back and forth and working through trying to divorce someone who cannot be found or undertake what would be necessary to find her. He should perhaps consider doing so now, if there are any lingering concerns. Get a divorce and marry Jane here in Canada.

As a point of interest, here is what my attorney friend in Belize says is required to marry there, which I note seems to suggest that proxy marriages are legal and recognized there:

Please note that in order to proceed with a marriage, at least one of the partners must be located in Costa Rica.

Documentation required for this process is detailed as follow: Birth certificates: of each party, duly apostilled if it comes from abroad. Certificate of Marital status for Costa Rican nationals or Affidavit of single status for foreign nationals. Scanned copy of the bio-page of passports: original passports with entry stamp (or residence ID) will be required on the day of the ceremony. POA: if one of the partners is abroad.

Important notes: All documents in other languages than Spanish must be translated by a sworn translator in Costa Rica. All documents are required in original.

I just want to know as they refuse my wife’s application because aout marriage was by proxy so the only way to fixe it is to divorce and remarry again is this can be an issue when I will resubmit my wife’s application ?

 

[armoured]

I just want to know as they refuse my wife’s application because aout marriage was by proxy so the only way to fixe it is to divorce and remarry again is this can be an issue when I will resubmit my wife’s application ?

I think all are in agreement: if you divorce and remarry, you should not have any problem with IRCC. And I repeat my suggestion to include a short letter of explanation, you divorced and remarried because of the IRCC refusal and in order to meet IRCC requirements