Alberta (Attorney-General) v. Underwood

Alberta (Attorney-General) v. Underwood

Section 20(3) of the Alberta Solemnization of Marriage Act is intra vires under BNA Act s.92(12) because it prescribes a provincial formality (parental consent) as a condition precedent to the solemnization of marriage within the province; failure to comply renders the ceremony void ab initio. The court expressly reserves the question of Dominion competence to legislate capacity to marry.

Citation
[1934] SCR 635
Parties
Appellant (plaintiff): Gertrude Mary Neilson (by her next friend Gertrude Mary Neilson); Intervener: Attorney General for Alberta; Respondent (defendant): William Kenneth Underwood; Intervener: Attorney General of Canada
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 June 1934
Procedural Posture
Appeal / Final Judgment of the Supreme Court of Canada on Appeal From Appellate Division of the Supreme Court of Alberta
Outcome
Appeal allowed; judgments below set aside; subsection 3 of s.20 held intra vires; marriage declared null and void.
Legal Topics
Solemnization of Marriage, Parental Consent, Provincial Legislative Competence, Validity and Annulment of Marriage
Source Language
English
Constitutional Law Family Law Solemnization of Marriage Parental Consent Provincial Legislative Competence Validity and Annulment of Marriage

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Parties

Gertrude Mary Neilson (by her next friend Gertrude Mary Neilson)

Appellant (plaintiff)

Attorney General for Alberta

Intervener

William Kenneth Underwood

Respondent (defendant)

Attorney General of Canada

Intervener

Procedural Posture

Appeal / Final Judgment of the Supreme Court of Canada on Appeal From Appellate Division of the Supreme Court of Alberta

Legal Issues

  1. 1 Whether s.20(3) of The Solemnization of Marriage Act (Alberta) is within provincial competence under BNA Act s.92(12)
  2. 2 Whether the parental consent requirement is a matter of solemnization formalities or of capacity to marry
  3. 3 Whether absence of prescribed parental consent renders a marriage void ab initio

Ratio Decidendi

Section 20(3) of the Alberta Solemnization of Marriage Act is intra vires under BNA Act s.92(12) because it prescribes a provincial formality (parental consent) as a condition precedent to the solemnization of marriage within the province; failure to comply renders the ceremony void ab initio. The court expressly reserves the question of Dominion competence to legislate capacity to marry.

Court Disposition

Appeal allowed; judgments below set aside; subsection 3 of s.20 held intra vires; marriage declared null and void.

Orders

  • Appeal allowed
  • Subsection 3 of section 20 of The Solemnization of Marriage Act (Alberta), as enacted by The Solemnization of Marriage Act Amendment Act, 1931, declared intra vires