Basically… Both Husband and Wife Are Equal Before the Law
Whether for a civil or religious marriage, certain requirements relating to age, capacity, marital status, kinship, celebrant and publication of bans must be respected. The spouses, necessarily a man and a woman, have the same rights and the same duties. They owe each other respect, fidelity, support and assistance. Each one keeps their name and last names after the marriage. The spouses together ensure the moral and material direction of the family and exercise joint parental authority.
The Possible Choices
All spouses, whether married civilly or religiously, are subject to a matrimonial regime. It regulates their economic relations during marriage and the fate of their property upon the dissolution of the regime.
The matrimonial regime takes effect on the day of the celebration of the marriage – or the day of the act recording a change of regime – and ends upon a judgment of divorce or marriage annulment, or on the occasion of the death of one of the spouses. The current matrimonial regime is also dissolved by the decision of the spouses to adopt, through a notarial contract, a new choice of matrimonial regime.
The Civil Code of Québec expressly provides the rules concerning two matrimonial regimes: the partnership of acquests and separation of property.
Since July 1,1970, the regime of the partnership of acquests is the regime that automatically applies to spouses who marry without a contract. This is the common legal matrimonial regime. The spouses may also opt for the regime of the partnership of acquests and attach particular or specific conditions to it, under a marriage contract entered into before a notary.
On the other hand, the system of separation of property can be adopted only by marriage contract signed before a notary. It allows all kinds of agreements between spouses to the extent that they are not contrary to law or to public order.
Spouses who married before July 1, 1970 without a contract are subject to the rules regarding commonality of furniture and acquests, better known as community of property. This system is no longer regulated as such in the Civil Code of Québec. However, spouses subject to this plan continue to be subject to its provisions. The new spouses may also, by means of a notarized marriage contract, choose a community of property matrimonial regime.
The Partnership of Acquests Regime
In a partnership of acquests, there are two categories of property: “owned” property and “acquired” property. Owned assets are primarily those owned by each spouse at the beginning of the plan and those received during the plan by succession or donation. Any property not declared as owned is considered acquired property.
Under the spousal partnership, each spouse retains the administration of his own property and acquired property, subject, however, to obtaining the consent of the other to dispose of his acquired property free of charge, inter vivos. Some reservations also apply in respect of family residences and furniture for household use. Furthermore, upon the dissolution of the plan, each of the spouses may request the division of the acquired property of the other in accordance with the established rules.
Separation as to Property
In separation as to property, only “owned” property exists. Each spouse administers his or her property alone and disposes of it as he sees fit, subject, again, to provisions concerning family residences and furniture for household use.
The separation of property regime has the advantage of ensuring the complete autonomy of the spouses and of protecting each person from the financial errors or economic difficulties of the other. It may, however, lead to certain inequities towards the economically weaker spouse, particularly when the regime is dissolved.
Family Patrimony and Compensatory Allowance
The Civil Code of Québec provides certain provisions that apply to spouses, regardless of their marital status.
The Civil Code enacted on July 1, 1989 created the provisions for family patrimony. Under this legislation, marriage automatically entails the constitution of a family patrimony. In the case of separation, divorce or marriage annulment, the value of that family patrimony is divided equally between the spouses or between the surviving spouse and the heirs, as the case may be.
In addition, certain rules ensure the protection of the family residence(s) during the marriage. The spouse that owns a family residence cannot sell, or even mortgage in the majority of cases, without obtaining the written consent of the other spouse. However, this protection is fully effective only if the non-owner spouse has published a declaration of family residence in the registry office. Similarly, a spouse may not, without the consent of his spouse, alienate, mortgage or transport furniture used for the household out of a family home.
For further information, please consult our article on family patrimony.
Finally, at the time when the court pronounces legal separation, divorce or marriage annulment, the judge may order one of the spouses to pay to the other a benefit in compensation for the latter’s contribution to property or services, to the enrichment of the patrimony of his spouse. The same applies in case of death.
The choice of the matrimonial regime does not always receive the attention it deserves. You should discuss this with your notary. It can help you to analyze your situation and guide you in choosing a matrimonial regime adapted to your needs.
Source : Chambre des notaires du Québec (Translation)
Consult your notary, who leaves nothing to chance.