If a Marriage Wasn’t “Legal” Can a Court Still Grant a Divorce?

This was explored in a case called Azam v. Jan, in which a series of Alberta courts had to determine an interesting issue: can a court grant a divorce in a marriage that was never legally valid in the first place?

This couple met online in 2002 when the man was living in Canada, and the woman was living in Pakistan.  They met via a marriage website in 1999. They were married in Pakistan in 2007 and she later moved to Canada with him.

However, as a twist, at the time of their marriage the man was already married to (and had a family with) another woman.

He was living with his family in Calgary, and had been married to his first wife in Pakistan in 2000.

He advised his first wife that his “other wife” was coming to live with them in Calgary. Understandably, this did not go over well, and the woman left in 2008. She requested a divorce, and made a claim for spousal support. The court described the situation as follows:

[The woman] argues that [the man] was divorced when he married her and produced a Pakistani national identity card to the officiant at the time. [The man] says otherwise and points to his ongoing marriage to [the first wife] in 2000, the mother of his three children, who apparently has little, if any, knowledge of this dispute.

The legal problem was an interesting one: polygamous marriages are permitted in Pakistan, but not in Canada. So, if the man’s first marriage was valid, then the second marriage would be determined to be polygamous in Canada. This means that the second wife would have no legal basis for claiming spousal support. However, if the man was truly divorced from the first woman when he married the second wife, then the marriage would be considered valid and she might be entitled to spousal support.

This raises interesting constitutional and international jurisdiction concerns, as well as the issue of whether a Canadian court is able to grant a divorce in a polygamous marriage. This case was heard in a variety of courts, first by a trial court, then by the Court of Appeal (which ordered a new trial), and then by a trial court again.

That last court took a fresh look at the facts. The man and his first wife were living together in Calgary and presenting themselves to be a married couple. The marriage to the second wife apparently took place in Pakistan, and the wife did not know of it. The second wife did not understand what she was getting into. The court explained:

Although she was visiting her family in Pakistan when [the man] and [the woman] had their wedding, there was no evidence that [the first wife] was aware of this ceremony either at the time it took place or since. In fact, [the man] testified that he did not tell [the first wife] about it. She was not called to testify in these proceedings. It is not disputed that [the first wife] remained in Pakistan for several weeks beyond her annual family visit, due to the health status of one of her parents.

While [the first wife] remained in Pakistan, [the woman] and [the man] travelled to Calgary on November 27, three days after their wedding. Initially they stayed in the home which [the man] shared and continues to share with [the first wife].

However,[thewoman]moved to an apartment shortly before [the first wife’s return] in the spring of 2008. By that time, [the woman] was pregnant with [the man’s] child but sadly the baby died shortly after birth in July, 2008. The relationship between [the woman] and [the man] had broken down by that time and [the woman] severed the relationship thereafter. …

I do not accept [the woman’s] evidence that she thought she was marrying a divorced man in 2007. She is an educated, well-spoken, confident woman having spent time in western countries such as the United States and Australia where she took a master’s degree in education. In any event, [the woman] has acknowledged that her marriage to [the man] was at the very least, a legal polygamist marriage under Pakistani law.

The illegal nature of the second marriage presented the court with a legal conundrum. Rather than granting a divorce for a non-existent marriage, it resolved on public policy grounds, to achieve a fair result. The court declared the second marriage as void from the start, and wrote:

The only thing known with any certainty is that the [second] marriage is not recognized as valid under Canadian conflict of law rules because polygamy is not legal in Canada. Recognition of this foreign marriage cannot be forthcoming because [the woman] cannot prove the “essential validity” of it. She seeks a divorce judgment and since the marriage cannot be proven to the satisfaction of this Court, her application must fail. How- ever, there is one other certainty in these proceedings; this marriage is also a nullity under Canadian law.

Accordingly, in consideration of all of the foregoing, I take jurisdiction on public policy grounds. I acknowledge this marriage for the limited purpose of providing an adequate remedy having been satisfied that whatever its foreign legality, it is invalid in Canada. The fact that this union has broken down, leaving the parties in legal limbo, is not in dispute.

Accordingly,[thewoman’s]requestfora judgment for divorce is dismissed. I declare the marriage between [the woman and the man] to be void ab initio and grant an order of annulment.