Droit+de+la+famille—2254

DF - 2254 1995 Cour supérieure, Montréal

- Man from Algeria marries woman with Moroccan citizenship. - He sponsors her to become a Canadian citizen. - HIS STORY: he believed the woman was in love with him so consented to marry her; in reality, the woman only married him for the citizenship; they never slept together before or after marriage - HER STORY: she claims they were marrying to live together; that when she returned from Morocco a year after the marriage, he was nowhere to be found. - The judge finds that neither he and her are not credible as witnesses. Their stories contract each other, and reveal internal contradictions. Neither man nor woman presented a witness.
 * Facts:**


 * Issue**: Should the marriage be annuled for reason of error on the man's part?
 * Held**: No, the marriage should not be annuled. The man did not establish on a balance of probabilities that he was mistaken about the woman's motives for marriage.


 * Reasoning (Julien J.):**

// 380. A marriage which is not solemnized according to the prescriptions of this Title and the necessary conditions for its formation may be declared null upon the application of any interested person, although the court may decide according to the circumstances.// // 382. A marriage, although declared null, produces its effects with regard to the spouses if they were in good faith.////In particular, the liquidation of the patrimonial rights that are then presumed to have existed is proceeded with, unless the spouses each agree on taking back their property.// // 387. A spouse is presumed to have contracted marriage in good faith unless, when declaring the marriage null, the court declares that spouse to be in bad faith.//

- Consent free from vice is one which is (a) "libre" and (b) "éclairé" (art. 365, para. 2 CCQ) - Consent is "libre" if it is exempt from violence. There is no question of violence here. - Consent is "éclairé" if it is exempt from "erreur dans la personne". A proposed provision whereby fraud could annul marriage was never put into force in the CCQ. Error is cause of nullity in the marriage only if it bears on an essential quality of the spouse, due to the fraud of the latter or of a third-party, or on the identity of the spouse. False representations are not a cause for annulment of marriage. - Traditionally, only error as to the physical person was accepted. Jurisprudence widened to include error as to professional situation, sexual orientation, religion, criminal record and health. Courts refused to grant error for change of emotion, behaviour and prior morals. - The man is questioning the sincerity of the woman's consent. - Real consent, to be valid, must have: (a) capacity (b) intention to live maritally together after the marriage. - This raises the question of the '**simulated marriage**' ('//mariage en blanc//'): marriage contracted with a view to overcome a law (ex: Immigration Laws). Simulated marriages don't always imply lack of consent - the parties didn't want all the effects of marriage, but did want some. Courts won't annul a simulated marriage unless one party was tricked.

The case at bar: - The man had the burden of proof to demonstrate that he had been mistaken by the woman on her intentions. - Both parties were adults at the time they married. Marriage should not be entered into lightly. Divorce remains an option for the couple.