As legal professionals in family law, notaries can be precious allies. They can analyze your situation and counsel you regarding your choice of matrimonial regime. A notary can also officiate your marriage and draw up your marriage or community of life contract. If you decide on a de facto (common law) union, the notary will also explain the protective measures that can be taken.
Married couples are automatically subject to the regime of partnership of acquests.
Duties Each spouse has the same rights and obligations in a marriage, whether they are united by a civil or religious marriage, and regardless of whether the spouses are of the same gender or of different genders. They owe each other respect, fidelity, succour and assistance and are bound to live together (share a “community of life”). Both share moral and material responsibility for the family and exercise parental authority together. Spouses retain their given names and surname after marriage.
Obligations The spouses are subject to the rules on contribution to household expenses, the protection of the family residence, the partition of family patrimony and compensatory allowances. Each spouse qualifies as the legal heir of the other if one spouse dies without a will.
Matrimonial regime Married couples are automatically subject to what is called the regime of partnership of acquests (or “legal regime”). However, they can make a marriage contract that provides for the “regime of separation as to property” instead. This contract must be executed by a notary.
To choose the right matrimonial regime for your couple, do not hesitate to consult a notary.
By choosing a notary to officiate your marriage, you will benefit from personalized legal advice about the undertaking and can rest assured that the rules surrounding its legality will be respected.
Notaries can officiate civil unions and marriages. They even benefit from a certain amount of flexibility.
Location of marriage celebration For instance, unlike clerks, who must perform marriages in a courthouse, notaries can officiate in any location chosen by the couple. However, the location must be accepted by the officiating notary.
If the ceremony is held in a courthouse, opening hours are from 9:00 a.m. to 4:30 p.m., Monday to Saturday, excluding Sundays and public statutory holidays. Following a first meeting with the future spouses, the notary will be able to officiate the marriage 20 days after publication of a notice of marriage or civil union via the Directeur de l’état civil.
Time of the marriage Unlike a clerk, who must comply with the hours permitted by the courthouse, a notary has greater flexibility. A notary can officiate a wedding from 9 a.m. to 10 p.m. on any day of the week.
Advantage of a using a notary as officiant Marriage ceremonies are subject to many rules aimed at ensuring their legality. There are several advantages to using a notary as officiant:
- You will receive personalized legal advice on the different matrimonial regimes
- You will understand the legal consequences of the undertaking
- You will make an informed decision as to whether or not to enter into a marriage contract
- You will have answers to all your legal questions
By choosing a notary for your wedding, you will be able to personalize the celebration and adapt it to your needs. A notary can officiate a civil marriage regardless of the religion of the spouses.
Marriage ceremonies are subject to many rules aimed at ensuring their legality. Choosing a notary to officiate the ceremony may be advisable, especially when a couple wants to know the legal consequences of such an undertaking and to find out more about the possibility of entering into a marriage contract.
Civil and religious marriages both need to meet certain requirements. The notary will make sure that they are respected.
Age, marital status and identity
- Before a civil marriage, the officiating notary must make sure that both future spouses have reached the age of 16.
- The notary must also verify that the intended spouses are free of any previous marital or civil union ties, unless they are already in a civil union with each other. Note that a judgment of separation from bed and board does not end a marriage. A judgment of divorce must be obtained before a legally married person can remarry.
- The notary must ask the future spouses for the required proofs of identity and marital status before the marriage.
Publication of the marriage A notice of marriage must be published on the website of the Directeur de l’état civil (by filling out the form Application for publication or for a dispensation from publication of a notice of marriage or civil union) 20 days before the scheduled solemnization date.
This publication must make it possible for any person to be informed of the marriage so that they can express opposition, for example in cases where, to the person’s knowledge, one of the spouses is already married, or if the person considers that the consent of one of the future spouses might not be free or informed. This type of publication replaces the traditional “reading of the banns.” An exemption from publication can be obtained for serious cause, for example when a person at the end of their life wants to get married. If the spouses are already joined together in a civil union, however, it is not necessary to publish a notice of marriage.
The witness or witnesses The notice of marriage is prepared at a meeting with the notary, and at this time, the intended spouses must be accompanied by a witness of full age chosen by the couple. This witness does not have to be one of the witnesses for the ceremony itself, but must know both future spouses. Otherwise, two witnesses are required. The role of the witness at this meeting is to attest to the accuracy of the information in the notice of marriage (names, dates and places of birth of the intended spouses).
Choice of matrimonial regime Meetings with your officiating notary also provide a good opportunity to discuss your choice of matrimonial regime by marriage contract. In Quebec, marriage and civil union contracts must be notarized to be valid.
By choosing a notary for your wedding, you can have a marriage ceremony that corresponds with your tastes.
During the marriage ceremony, the officiant reads certain sections of the Civil Code of Québec to the intended spouses in the presence of two witnesses, who will then all sign the declaration of marriage.
The articles of the Civil Code of Québec can be summarized as follows:
- The duties of respect, fidelity, succour and assistance
- Obligation of sharing a “community of life” and of bearing moral and material responsibility for the family together
- Expenses of the marriage, etc.
After reading out the rights and duties of the spouses, the officiant gets their consent and declares them united in marriage. The marriage declaration is signed by the spouses, then by the witnesses. The officiant signs last. This declaration is then sent by the officiant to the Directeur de l’état civil and will constitute the proof of marriage.
You can discuss the details of your desired ceremony with the notary, including:
- The exchange of rings
- Speeches by guests, etc.
A marriage contract allows you to determine how your property will be managed for the duration of your life as a couple and in the event of a separation and divorce or death.
The marriage contract allows you to determine how your property will be managed for the duration of your life as a couple. The rules may be established by the spouses, but they must comply with the provisions of the Civil Code of Québec. That way, if you separate or divorce or if one of you dies, you will have already established how your property will be partitioned and who will be liable for debts. To be completely valid, this official document must be notarized.
Without a notarized contract, the law will set the rules for you, and the partnership of acquests legal regime will apply. It is better to establish your matrimonial regime ahead of time, as in the turmoil of a divorce or after a death, these arrangements can turn out to be complex.
Choosing a matrimonial regime
- Before the marriage:
- The marriage contract allows the future spouses to choose their matrimonial regime by mutual agreement. It is advisable to sign the marriage contract before the ceremony and to discuss it with your notary at a preliminary meeting. Without a marriage contract, the spouses will be automatically married under the legal regime of partnership of acquests.
- Once the couple is married:
- Married spouses can change their matrimonial regime. Spouses without a marriage contract will have to dissolve the regime of partnership of acquests and sign a new contract. This change takes effect on the day the notarial act is signed.
Civil union creates the same rights and obligations as marriage.
In June 2002, the concept of civil union was introduced into our Civil Code. Since then, all couples, regardless of gender, can choose a civil union rather than a de facto union or a civil or religious marriage. Before this law was adopted, heterosexual couples had to choose between a de facto union and marriage, and homosexual couples only had access only to de facto unions. The civil union has become an additional option that is available to all couples.
Comparison of civil union and marriage
- Legal framework : The legal framework for civil unions is identical to the framework for marriage, and the rights and obligations are the same. The marriage provisions on contribution to household expenses, the protection of the family residence, family patrimony and compensatory allowances also apply to civil unions. Civil union spouses also qualify as legal heirs if their spouse dies without a will.
- Matrimonial regime : As in marriage, civil union spouses can stipulate in their notarized civil union contract whether they choose the regime of “separation as to property” or of “partnership of acquests.” Regardless of the selected regime, they can change regimes by mutual agreement during their union, but this change must be executed before a notary. In addition, civil union spouses may choose an unequal partition of the property comprising the family patrimony in the event of separation.
- End of a union: Spouses may also turn to a notary to end their union without court intervention, unless they have children together. If they do, it will be necessary to go before a court, which will dissolve the union and deal with child custody and support in its judgment.
- Civil union before marriage: A couple already in a civil union can still get married. The marriage then leads to the end of the civil union. The matrimonial regime of the spouses joined in a civil union automatically becomes the married couple’s regime, unless they come to a different agreement in a marriage contract. For examples, if the previous regime was a partnership of acquests, the spouses will continue to be married according to this regime. If the spouses had signed a marriage contract stipulating separation as to property, they will continue to be married according to this regime.
Contrary to popular belief, de facto (common law) spouses do not have the same protections as married people. It is wrong to believe that after a certain number of years of living together, de facto spouses obtain the legal status of married persons and the protections provided by the Civil Code of Québec.
From a legal standpoint, de facto (common law) spouses have no obligation towards each other regardless of the time spent living together, unless they have entered into a cohabitation contract. However, de facto spouses have obligations towards their children, namely the exercise of parental authority and support obligations. Children born of a de facto union have the same rights and obligations as children from a marriage or civil union. Whether or not they are married, the parents must:
- Jointly ensure the well-being of their children
- Meet their children’s basic needs, including education, shelter, food and clothing
De facto spouses are not entitled to the family residence protection that is granted under the Civil Code of Québec to legally married and civil union couples. A de facto spouse who is the sole owner of the family residence may sell or mortgage it without the consent of the other spouse.
De facto spouses do not benefit from the family patrimony protection that ensures the equal partition of certain kinds of property in the event of divorce. The spouse who is the sole owner of the residence or secondary residence will keep it. The owner of the residence also retains the right to sell it without sharing the proceeds of the sale with the other spouse.
To avoid such a situation, the de facto spouses both need to purchase the property by each signing the notarial act. If you are both owners, you are both adequately protected and will both benefit from the increased value of the jointly purchased house upon resale.
Children born of a de facto union have the same rights and obligations as children from a marriage. Like all children, the children of de facto spouses may be given the surname of the mother or the father, or a combination of the two.
In the event of death
De facto (common law) spouses are not each other’s legal heirs upon death, unless this is specified in their wills. If this is not the case, the family of the deceased person inherits their property. The rule is similar for life insurance. The de facto spouse can only collect the deceased person’s life insurance if they were previously designated as a beneficiary of the policy, either in the policy itself or in a will.
In the event of separation
Alimony : De facto spouses are not entitled to alimony. However, child support may be requested of the de facto spouse with the higher income in order to meet the children’s needs. De facto spouses who are parents are subject to the same child support rules as married spouses.
Parental authority: Even if the parents live separately, they continue to exercise joint parental authority over their children. Therefore, full access rights cannot be opposed, hindered or restricted without serious reasons for doing so.
Partition of property: Unless otherwise indicated in a joint agreement, each spouse keeps the assets and property they acquired while they were together. This is why it is important to keep all documents, receipts and titles of ownership showing ownership of each item.
De facto union agreement and legal documents : The best way to protect yourself as a de facto spouse is to consult your notary and draw up a will and a notarized protection mandate and both sign the purchase contract for your home. A notarized de facto union agreement can also be concluded to establish the rights and obligations of each spouse.
If you are living in a de facto union, it is important to consult a notary in order to have protection in the event of separation or death.
The protections stipulated by the Civil Code of Québec for legally married couples do not apply to de facto (common law) spouses.
This is why it is important to have a written document that ensures the spouses’ legal protection. It allows them to set out their rights and obligations towards each other in advance, as well as the manner in which they would like to partition their property in the event of a separation. It also sets out each spouse’s contributions and responsibilities in their life together (“community of life”), including how expenses will be shared, for example. A de facto union agreement drawn up by a notary specializing in family law therefore provides excellent protection against the vicissitudes of life as a couple.
Determine the rules governing your relationship
A notary can tell you all you need to know about the legal, civil and tax implications of your union. Depending on your needs, a notary can draw up a de facto union agreement detailing all the rules that will govern your relationship.
Content of a de facto union agreement
For instance, you may wish to include provisions concerning:
- Establishment of the shared residence and ownership rights
- Administration and disposal of property acquired during community of life
- Gifts of furniture and other property while still alive
- Fate of the shared residence in the event of separation or death, such as granting the priority for the right of purchase to the former spouse
- Establishment of the right to alimony following separation
- Partition of certain properties on separation
To protect themselves, de facto spouses could also agree to:
- The drafting of a notarized protection mandate
- The drafting a notarial will (the only way to ensure that a de facto spouse inherits something after the other spouse’s death)
- The signature by you and your spouse of the purchase contract for your home
- The designation of your spouse as the beneficiary of your life insurance
Some social or tax laws give de facto spouses the same rights as married or civil union spouses, but these are exceptions and do not provide sufficient protection. This is why the signing of a cohabitation contract or a notarized separation agreement is recommended.
Société de l’assurance-automobile du Québec Under certain conditions, the Société de l’assurance-automobile du Québec recognizes a de facto spouse’s right to compensation should the de facto spouse die in an automobile accident, but this does not entitle the surviving spouse to the deceased’s property unless stipulated by the will.
Régie des rentes du Québec The Régie des rentes du Québec provides that if one de facto spouse dies, the other will be entitled to receive a pension after three years of community of life (cohabitation), or after one year if a child is born of the union.
Health care A de facto spouse can consent to health care for their spouse when the latter is incapable of giving such consent and where no mandatary, curator or tutor has been appointed.
Parents living in a common law union Children of couples living in a de facto (common law) relationship have the same rights and obligations as children of married couples. De facto spouses may give their child the name of either spouse, or a combination of both. As in the case of a married couple, a de facto spouse with custody can apply for child support from their ex-spouse.
Help your liquidator or mandatary avoid time-consuming searches by letting them know the location of assets and important documents by means of a property inventory.
A patrimonial inventory is an inventory of your assets and liabilities, including bank accounts, investments, insurance policies, residential property, and all other elements of your estate and debts. This inventory also identifies the location of your property, digital assets and investments, including the name and address of the institutions where your bank accounts are located and other important documents and details.
In particular, this inventory will be used by your mandatary if your incapacity is established or by the estate liquidator to draw up a list of your assets and debts. Tracking down this information can significantly delay the settlement of a succession and prevent relatives from benefiting from their inheritance in a timely fashion. Your heirs will have difficulty assessing the value of what you are leaving them, and will not be able to evaluate whether the succession is in deficit, which would mean they should refuse the legacy.
A patrimonial inventory can also be used for redistribution of assets following separation or divorce, for example. Such a document would also be very useful in the event of an insurance claim, fire or other tragic event.
A patrimonial inventory is a simple and effective document that makes it possible to avoid these complications.
Download the form Patrimoine : votre guide 360 for free and inform your relatives of the existence of your assets.
A notarized patrimonial inventory comes with a number of advantages.
Notaries are required to keep the original patrimonial inventory in a safe place and to enter it in a register at the Chambre des notaires du Québec, which makes it much easier for the liquidator or mandatary to find the document. The notary will keep your patrimonial inventory safe, which is wise given the risks of fraud and identity theft.
The notary will also ensure that the patrimonial inventory is updated periodically to reflect the couple’s economic reality. Notify your notary of any changes in your assets.
Ideally, the patrimonial inventory should be written before a notary at the same time as your will and protection mandate, since these documents complement each other. The liquidator of your succession will use them, as will your mandatary if you are declared incapacitated.