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Notaries and civilian marriages

For many people, the commitment of one person to another is solemnized by a marriage ceremony, either civil or religious, or, since June 2002, by a civil union ceremony

Regardless of whether it takes place in a church, courthouse or elsewhere, the ceremony is very important because it is the opportunity for the two people involved to solemnly and publicly declare their wish to be married. However, there is more to it than just the ceremony itself ; the validity of marriage depends on various rules.

The notary as officiant

When two people wish to marry civilly, they must first choose a competent officiant. This is an essential condition for the validity of the marriage. Since 2002, couples have been able to solemnized their union before a notary in a civil ceremony. We strongly advise you to make all the necessary verifications to make sure that the wedding officiant whom you will have chosen is well and truly an officiant recognized by the director of the office registry and able to proceed wit the publication of your wedding declaration.

The provisions of the Civil Code of Québec, that govern marriage ceremonies impose various responsibilities on the officiants, some of which are already familiar to notaries, such as the obligation to verify the parties’ identities and obtain their consent. As a public and judicial officer, the notary is fully authorized to fulfil the function of officiant.

Legal requirements

Before the civil ceremony, the officiant notary must make sure that both intended spouses have reached the required age of 16 years or more, and that they have never been married before, or if they have, that the previous marriage was dissolved by means of death, divorce or annulment. Note that a decree of judicial separation does not annul the marriage. A judgment of divorce must be obtained before the person can remarry. The notary will take care to ask for the required proofs of identity and marital status before the wedding. If an intended spouse is younger than 18 years old, the notary must obtain the consent of the parent or tutor.

Because the marriage must be “publicly” contracted a notice must be posted twenty  days prior to the date of the ceremony. This form of “publicity” – notice of marriage- replaces the traditional “publication of the bans”. An exemption from publication can be obtained for serious cause: for valuable reasons.

Meeting your officiant/notary is a good opportunity to discuss your choice of matrimonial regime by marriage contract. By law, marriage contracts must be notarized. For more information on this, see the text below or consult the pamphlet on matrimonial or civil union regimes on our site : www.brendalangloisnotaire.com

When preparing to meet with your notary, make sure to collect all required documents (namely a copy a of the birth certificate and a copy of the judgement of divorce)

Where the ceremony takes places

The notary can perform a civil marriage every day between 9 a.m and 10 p.m including Sundays and statutory holidays, unless the ceremony takes place in a courthouse. In this case, the limitations to which the clerks and deputy clerks of the Superior Court are subject apply, i.e. between 9 a.m and 4:30 p.m. only, every day except Sundays and statutory holidays.

If one of the intended spouses cannot move because of a physical condition, attested to by medical certificate, the ceremony can take place where that intended spouses is, if the officiant agrees.

The notary can perform the wedding ceremony in any location agreed upon with the intended spouses, provided that it respects the solemn nature of the ceremony and is furnished accordingly. Therefore, a marriage solemnized by notary gives the intended spouses a much wider choice of location.

It is not enough to just tell the notary where the ceremony is to take place. They must be able to ensure that the location respects the solemn nature of the ceremony and that it is furnished accordingly. The officiant reserves the right to accept or refuse to perform the civil marriage ceremony due to the choice of location. Discuss your choice with your notary. Together, you can agree on a place that fulfils the legal requirements.

The ceremony

At the ceremony, the officiant reads to the intended spouses sections 392 to 396 of the Civil Code of Québec, in the presence of two witnesses. These sections treat the effects of marriage; respect, fidelity, succour, assistance, the obligation to live together, the moral and material direction of the family, duties, etc… These articles will be integrated into the wedding ceremony which the celebrant and the newlyweds will have created and will be read as being integral part of the wedding ceremony. This way of making allows the celebrant to respect the requirements of the law without weighing down the text of the wedding ceremony.

It is important to know the legal consequences of marriage. Do not hesitate to talk about them beforehand with your notary, who will inform you not only about your rights and responsibilities, but also the other effects of marriage, such as the constitution of family patrimony.

After reading the spouses’ rights and responsibilities, the officiant obtains their consent and declares them married. The spouses sign a declaration of marriage, which the witnesses countersign, and then the notary signs. This declaration will be sent to the Registrar of Civil Status and will constitute the proof of marriage.

The rules governing civil marriage also govern the civil union ceremony, appropriately adapted.

THE MATRIMONIAL REGIME

Although measures now exist to govern the partition of certain property, for certain couples, it remains important to choose a matrimonial regime to cover the sharing of other household property. The first thing to do in planning for life together is for both spouses to choose the matrimonial regime best suited to their needs.

A matrimonial regime contains provisions regarding the property of the spouses. They can choose one of three matrimonial regimes: the legal regime of the partnership of acquest, separation as to property, and community of property.

Except for the legal regime of partnership of acquest, which applies automatically to spouses, it is by the writing of an authenticated contract of marriage, adapted to the couple's situation, that the choice of a matrimonial regime can be made. It is also in that contract that couples agree to the consequences of the dissolution of the union. So it is of primary importance that the contract be written in precise terms, by a competent and professional notary, who can guide and advise them during their reflection.

There is no perfect matrimonial regime. It is up to the partners to weigh the pros and cons of each regime, according to their situation and expectations, and to make a choice that will be satisfactory to both of them. The matrimonial regime chosen has no effect on property included in the family patrimony, but only on other property.


THE LEGAL REGIME OF PARTNERSHIP OF ACQUEST

Nearly half of all couples get married without a notarized marriage contract. Their union is then automatically governed by the regime of partnership of acquest. This regime by which each spouse owns and administers private property and acquest, is the legal regime in force since July 1st, 1970.

Private property is that owned by each spouse before marriage. The following are also considered private property :

* Property acquired during the marriage by succession or gift;
* Property acquired during the marriage to replace private property, as well as any insurance benefits attached thereto;
* The rights and advantages devolved to either spouse as a subrogated holder or as a specified beneficiary under a contract, a retirement plan, other annuity or a personal insurance police;
* Clothing, personal papers, jewelry, and instruments required for their work;
* The right to support, to a disability pension, and other benefits of the same nature.

In general, property acquired during a marriage is considered an acquest, and its value is liable to be divided equally between the spouses should the regime be dissolved. Particularly, this property includes : salaries, investment and work income, and property acquired with that money. Unless it can clearly be established as the private property of one of the spouses, the property is considered an acquest.

As each spouse administers his or her private property and acquest, he or she is solely responsible for the debts he or she contracts. An exception to this rule concerns debts contracted for the current expenses of the family, for which both spouses are responsible.


Also, if the matrimonial regime is dissolved, each spouse can refuse the acquest of the other, particularly when the acquest show an unfavourable balance. However, refusal on the part of one spouse of the acquest of the other does not affect the others's right to his or her spouse's acquest, except in the case of death.


A notarial contract does not require to be covered by the legal regime of partnership of acquest. However, couples with special requirements can always have a contract drawn up by a notary


THE REGIME OF SEPARATION AS TO PROPERTY


This regime must be committed to a marriage contract made before a notary.


Under this regime, each spouse remains the exclusive owner of his or her property, administers alone all his or her property and assumes responsibility for his or her debts. However, there are exceptions attenuating that principle, according to the provisions dealing with the family patrimony, the protection of the family residence and the furniture in it, and the joint responsibility of the spouses with regard to debts contracted for the family's current expenses. As mentioned earlier, a spouse who is the sole owner of the family residence cannot dispose of it without the other spouse's authorization.


When the regime is dissolved, a spouse must be able to prove his or her ownership of an item to be recognized as the owner. Each spouse keeps what is his or hers. Gifts by contract of marriage can also increase the amount devolving upon the beneficiary. In some cases, however, the gifts mutually granted by the spouses in contemplation of death are automatically cancelled by divorce or annulment of the marriage; in all other cases, they can be cancelled or reduced by the court.


It is in the best interest of couples who opt for the regime of separation as to property to purchase all durable goods, particularly immovables, in undivided co-ownership.

This can be done simply by having the names of both spouses written on each notarial deed of ownership or purchase whenever the value of a transaction warrants it.


THE REGIME OF COMMUNITY OF PROPERTY


Although the regime of community of property has not been the legal regime in Québec since 1970 and is no longer popular among the majority of spouses, it is still possible to opt for it, by notarial contract.


Moreover, individuals married without a marriage contract before that date continue to be governed by the provisions of the Civil Code of Québec respecting community of property, unless they have since then concluded a marriage contract.

Under this regime, the property of the spouses is divided into three categories : common property, private property and the wife's reserved property (her salary, property acquired with her salary, etc.). The husband administers the assets of the community and his private property. However, he needs his wife's consent before he can sell, give or mortgage any asset of the community. The wife administers her private property and her reserved property. On the other hand, if requested by her husband, the wife must turn over to the community any income derived from her private property that has not been expended. She has the same rights over her reserved property as her husband has over the assets of the community.


The assets of the community consist of:

* All the movable property owned by the spouses at the time of the marriage;
* Common property (movable and immovable) acquired and paid for by the spouses during the marriage;
* Income from the spouse's private property and the proceeds of spouse’s salary.

Private property includes :

* Immovable property acquired before the marriage;
* Gifts granted under a marriage contract;
* Gifts made during the marriage;
* Legacies received from a spouse's ascendants (father, mother, etc.);
* Indemnities received by a spouse following  an accident.

When the regime is dissolved, the common property and the wife's reserved property are shared equally between the two partners and each spouse retains his or her private property. The wife can keep her reserved property by renouncing her claim to the assets of the community and, as in the case of a partnership of acquest, the wife can refuse to share the assets of the community if these show an unfavourable balance. However, this option is not available to the husband.

WHEN NEEDS CHANGE

A matrimonial regime or a marriage contract can be changed or amended at any time, provided both spouses mutually agree and sign a new deed to that effect before a notary. It is not necessary to have the court approve the change or to issue public notices for the benefit of creditors. This also applies to immigrants residing in Québec who, for example, have a matrimonial regime that differs too greatly from ours.

The new matrimonial regime comes into force on the day the contract is signed and is not retroactive.

FAMILY PATRIMONY


Before dealing with the various matrimonial regimes, some aspects of family patrimony should be considered. The family patrimony includes :

* The residences used by the family or the rights which confer their use;
* The household furniture included in these residences;
* The motor vehicles used for family travel;
* The benefits accrued accumulated by the spouses during the marriage under certain private retirement plans identified in the Act, such as registered retirement savings plans (RRSPs);
* The earnings registered during the marriage in the name of each of the spouses under the Act respecting the Québec Pension Plan or equivalent programs.

As a rule, provisions in the Civil Code of Québec regarding family patrimony apply to all persons married before or after July 1, 1989, regardless of their matrimonial regime or marriage contract. However, people married before July 1, 1989 who renounced the partition of the family patrimony by notarial deed before December 31, 1990, are exempted.

This point requires further clarification. Although the rules on family patrimony automatically apply to all spouses who, consequently, cannot withdraw from the division of the family patrimony before or during the marriage, withdrawal is possible at the time of division, either when a judgment of divorce, separation from bed and board or annulment of marriage is pronounced, or when one of the spouses dies, by way of a notarial deed or a judicial declaration.


PARTITION OF THE FAMILY PATRIMONY


The value of the family patrimony must be established at the time of partition, in the event of separation from bed and board, divorce, annulment of marriage or the death of either spouse. That value will be divided equally between them or between the surviving spouse and the heirs, as the case may be.


First of all, the debts contracted from the acquisition, improvement, upkeep and preservation of the property composing the patrimony are subtracted from the total market value. This gives the net value of the patrimony.

Other amounts must then be deducted, notably the net value of the property the spouses possessed when they married and the amounts provided by the spouses during the marriage for the acquisition or improvement of the patrimony, where the contributions were made out of property acquired through succession or gift. Once all these calculations have been effected, the value of the family patrimony to be partitioned is obtained.


PROPERTY EXCLUDED FROM THE FAMILY PATRIMONY


Property acquired by a spouse by succession or gift, before or during the marriage, its increase in value, and property such as immovables not used by the family, money in bank accounts, shares, etc., are excluded from the family patrimony. All of this property is subject to the rules of the spouse’s matrimonial regime.


DECLARATION OF FAMILY RESIDENCE


First of all, neither spouse may dispose of the family residence and the furniture used by the household (with which this residence is furnished or decorated) without the consent of the other; a spouse who disregards that obligation could be liable for damages.

However, this restriction has no effect on the right of ownership. The spouse who had not consented to the disposal of the family residence can have the transaction annulled if a declaration of family residence was first registered with the registry office of the registration division where the residence is located. A declaration of family residence can be made by either spouse, or jointly by both of them.

A spouse who makes an individual declaration is under no obligation to tell the other spouse about it



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