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Case For Legal Recognition

There was no effort by the state to regulate marriages until the 18th century. At that time, there was concern about shady marriages known as “Fleet Street marriages” being performed by dubious clerics. The result was Lord Hardwicke’s Act in 1793[17]. This Act was the first effort to exert state control over religious marriage. Given the long and bloody history of religious intolerance in Europe, it is perhaps not surprising that Protestant England did not extend recognition to the marriages of all faiths. Naturally, the marriages performed in the Church of England under the authority of banns were recognized. Quaker marriages were also recognized, reflecting Quaker influence in Parliament. It also respected the different view of marriage taken by a religious minority. In the Quaker tradition, the priest does not marry the couple; it is the couple who marry each other in the eyes of God, all others being merely witnesses[18]. A similar exception was also created for Jewish marriages. Catholic marriages were conspicuous by their absence.

Lord Hardwicke’s Act specifically did not apply to the English colonies in North America. It is noteworthy that one of the earliest Acts of the fledgling colony of Upper Canada was an Act to regulate marriage. This Act reflected the homogenous Tory Loyalist nature of the colony, and Governor Simcoe’s dream of creating a “Little England”. The statute was more intolerant than the British statute, in that only Church of England marriages were given legal recognition. There was no exception for Jews or Quakers[19].

As what would become Ontario grew in size and diversity, the original intolerant marriage law grew gradually more tolerant. However, suspicion continued for a prolonged period about Methodists, who were mainly recent American immigrants and suspected of harbouring republican sympathies. As a result, there was for a time a requirement that the couple swear an oath of loyalty to the Crown. Despite the increasing tolerance, hostility to Catholics meant that Catholic marriages were not recognized under the law of Ontario until 1847. Although Jewish marriages had enjoyed privileged recognition under English law, such marriages had no legal validity in this province until 1857[20].

At the end of the 19th century, any form of bona fide religious marriage could suffice to ensure that a couple was legally wed. However, religious marriage was the only way to be married. For agnostics or atheists, there was no secular option until 1950 when judges and others were permitted to preside over marriages for the first time under our law[21].

Throughout these changes in the law, the original recognition of the ancient right of Christian churches to marry couples under the authority of the publication of banns was preserved. Is now contained in section 5 of the Ontario Marriage Act [22].

[17] An Act for the better preventing of clandestine Marriages, 26 Geo. II, c.33 (U.K.).

[18] Affidavit of Robert J. Hughes, filed in support of the Applicant, MCCT in MCCT v. A-G Canada et al. at 3.

[19] An Act to confirm and make valid certain Marriages heretofore contracted in the country now comprized within the Province of Upper Canada, and to provide for the future Solemnization of Marriage within the same, 33 Geo. III, c.5 (U.C.).

[20]An Act to amend the Laws relating to the solemnization of Matrimony in Upper Canada, 20 Vict., c.66 (Prov. of Canada), s.1.

[21] The Marriage Act, 1950, Statutes of Ontario, 1950, c.42, s,21.

[22] R.S.O. 1990, c. M.3 [hereinafter the Act].

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