How Double Decker Marriages Affect Equalization

In Agu v Agu, 2024 ONSC 4085, the court was faced with determining whether a double-decker marriage in Nigeria from the early 1990s was a valid marriage for equalization purposes. For the following reasons, the court determined that the parties were validly married by Nigerian traditional or customary marriage and by Nigerian civil or statutory marriage law. The court took into consideration the certificate registry personnel and their role in the marriage. The parties were found to be spouses under the Family Law Act for the purpose of equalization of net family property.

The Applicant husband stated that the parties were married on September 1, 1994, in Nigeria. As part of his claim, he asked for a divorce and equalization of net family property. His financial statement indicated that the parties were married. However, the Applicant, while attending a settlement conference, stated that the parties were not married. Justice Horkins advised that the Applicant would have to amend his pleading, however the Applicant failed to do so. Following a motion, the Applicant was again granted leave to amend his application as it was the Applicant’s onus to disprove the legality of the marriage. The Applicant failed to amend, and upon another extension, he uploaded an “amended application” with no noted amendments. There was an amended application as part of the trial record in which he stated that the parties were “traditionally and customary married in September 1994” but that “they never conducted a legal or court marriage”. Nonetheless, the trial proceeded as if the Applicant had properly amended his application.

The Applicant acknowledged the customary marriage but testified that he was not present when it occurred as he had left for Italy. The Respondent claimed that the Applicant was present at the marriage. The Respondent’s evidence was corroborated by the Applicant’s brother and the Respondent’s friends. The court found that the Respondent’s evidence was compelling and more credible than the Applicant’s as it was supported by witnesses and documentation. The Respondent also claimed that the parties had a statutory marriage on July 17, 1992. Nigeria allows “double-decker” marriages, where a couple who has gone through a valid customary marriage may also have a statutory marriage at a later date. In that instance, both marriages are considered valid under Nigerian law. The Respondent testified that she and the Applicant went to a government office with a friend of the Applicant, where a small ceremony was conducted. The Respondent testified that the Applicant suggested they have a statutory marriage in order for him to use the marriage certificate to sponsor her. The Applicant came to Canada and began the Canadian sponsorship process. In the immigration file, the Applicant indicated that the Respondent was his wife and he was married.

The Respondent further testified that she and the Applicant kept a file in their home in Toronto where they maintained documents such as their passports, birth certificates, immigration documents and files, and their marriage certificate. After the parties separated, the Respondent discovered that the Nigerian passports and the original marriage certificate had been removed. The file did contain a photocopy of the marriage certificate. The Respondent sent a photograph of the photocopied marriage certificate to a friend in Nigeria who went to the local government office to obtain a certified copy of the marriage certificate. Her friend obtained a certified true copy of the parties’ marriage certificate on October 3, 2023.  It was certified, signed and initialled by the local marriage registrar, Rosaline Ugwu. On October 10, 2023, the Applicant wrote to Ms. Ugwu claiming that there had never been a statutory marriage and that the marriage certificate that she had certified was a forgery. Ms. Ugwu testified that she had initially certified the marriage certificate based upon the assurances of one of her clerks, who was in charge of the marriage registry and who told her that she had conducted the necessary investigations to ensure that Ms. Ugwu could certify the certificate. To confirm whether it was a forgery, Ms. Ugwu along with other employees, spent days searching for the original certificate. They testified that there existed marriage records going back to the 1960s in storage but that the duplicate forms for this specific marriage certificate could not be found in any register. Ms. Ugwu concluded that what she had certified days before as being a true copy of a certificate of marriage was a forgery. However, there was no consideration that documents could have been removed from the storage room or the local government offices or that they could have been tampered with. There was also no knowledge of how the records were stored in 1992. The court found that the Applicant was not credible and that there was a statutory marriage that took place on July 17, 1992, as the Respondent provided detailed evidence about the ceremony. The court also stated that there was insufficient evidence to conclude that the certificate of marriage provided was a forgery. The court stated that even if it were to conclude that there was an issue with the certified copy of the marriage certificate and that it was a forgery, the Respondent’s evidence that the statutory marriage took place, was credible.

The Applicant supported his argument with the case Lalonde v. Agha, 2021 ONCA 651. This case stands for the proposition that the parties had to have had the intention, at the time that they went through the customary marriage ceremony, to comply with the laws of Ontario for s. 31 of the Marriage Act, R.S.O. 1990, c. M.3, which operates to validate a formally invalid marriage solemnized in good faith. The court stated that even if it was found that the certified copy of the certificate was a forgery, the parties went through a statutory ceremony with the intention of entering into a valid, legally recognized marriage and that a Nigerian certificate is not necessary for the marriage to be considered valid in Ontario. The evidence was clear that the parties intended to be married; they lived together in Nigeria for over two years and in Ontario for over twenty-two years, had four children together, and indicated that they were married on various legal documents. The Applicant failed to rebut the presumption of a valid marriage.

Would you like to know more?  Please call us at (416) 927-0891 or email us at:  hello@dicksonappell.com