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 |
