The term child of the marriage is substantially a creature of statute and is used in divorce legislation to determine and set financial liability of divorcing parents in regards to a child, or over the age of majority children (aka adult child) but otherwise financially dependent.
The General Statutes of Connecticut use the term as follows (§46b-84(a):
"Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance."
In Doe v Doe, the Supreme Court of Connecticut held that a child brought to life through the use of a surrogate mother, and thus neither biological nor adopted, was nonetheless a child of the marriage, and thus subject to custody and support determinations as between the named parents. Justice Borden:
"The descriptor child of the marriage typically has been used as a means by which to distinguish between illegitimate and legitimate offspring.
"A child of the marriage is not always necessarily the biological or adopted offspring of both parents."
At §2 of the Canadian Divorce Act:
"Child of the marriage means a child of two spouses or former spouses who, at the material time, is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life."
The issue of a child's actions removing him from the care or control of a parent, and the consequence of that as to being a child of the marriage, and the further issue of child support liability, was debated in Adams in which Justice Clark wrote:
"Voluntary withdrawal from either parent's home does not preclude a finding that a child is a child of the marriage, where the parents have a continuing obligation to support the child. Each case must be examined on its facts."
The most frequent issue involves a child who attains the age of majority but then goes on to college or university studies. In this context, in Law v Law, Justice Fleury of the Ontario Court wrote:
"A court might have to consider the age of the child, his or her ability, his or her past performance in previous courses, his or her determination to assist with study costs through summer employment, the means of the paying spouse and any obligation to provide for the education of other children, the plans of the parents generally with respect of further education of their children, especially where these plans were formulated jointly by the spouses during cohabitation, the appropriateness of the course selected to generate future employment and also the conduct of the parties and the condition, means and circumstances of each of them."
In a British Columbia case, Farden, the Court used these factors to determine whether or not an adult child was still a child of the marriage for the purposes of ongoing child support:
"... whether the child is, in fact, enrolled in a course of studies and whether it is a full-time or part time [sic] course of studies; whether or not the child has applied for, or is eligible for, student loans or other financial assistance; the career plans of the child (i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do); the ability of the child to contribute to his own support through part-time employment; the age of the child; the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies; what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (and) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought."
- Adams v Adams Estate, 2001 ABQB 173
- Child Support Guidelines, §3(20(b) provides a more generic statement of the obligation as it relates to the children of two parents, without reference to marriage.
- Divorce Act, R.S.C. 1985, Chapter 3 (2nd Supplement)
- Doe v Doe, 710 A. 2d 1297 (1998)
- Duhaime, Lloyd, Adult Child Support: Dad, Send Money
- Duhaime, Lloyd, Legal Definition of Marriage
- Duhaime, Lloyd, Legal Definition of Parent
- Farden v Farden, 48 RFL (3d) 60
- Law v Law, 2 RFL (3d) 458 (1986)
- Pollard v Pollard, 1999 ABQB 976