While the legal requirements for your marriage change depending whether your marriage is civil or religious, the rights and obligations the spouses have and owe one another are the same.
For more information on the difference between civil and religious marriages, please see http://www.justice.gouv.qc.ca/english/publications/generale/maria-a.htm.
Which law governs my marriage?
Even if you were not married in Quebec, you can file for a divorce in Quebec as long as you or your spouse has lived in Quebec for the past year. If not, you can file for a divorce in any province or territory where you have lived for at least 1 year.
You can apply to separate from your husband if you have been residing in Quebec for 4 months
Section 3.1 Divorce Act
Everyone has the fundamental freedom of thought, belief, opinion and expression. Sect 2(b) of the Canadian Charter.
The Civil Code of Quebec (CCQ) establishes that both spouses have the same rights and obligations which include:
- Respect, fidelity, support and assistance (note that you are not breaking the law by living apart from your spouse) CCQ 392
- Manage together all family affairs, including parental authority and the choice of the family residence CCQ 394
- Women keep their maiden name (birth name), they do not take the name of their husband CCQ 393
- Household expenses are to be shared proportionally to your means, which means that if your spouse makes a lot more money than you in his job, he could be obliged to pay more for the family groceries CCQ 396
- Both are equally responsible for the debts that the other person owes if they are related to family expenses, which means that if you go into debt for buying a new family fridge, both you and your spouse are responsible for paying back the debt CCQ 397
- Recognition of surviving spouse as a successor if the deceased spouse does not make a will CCQ 624
- Creation of family patrimony, and you can decide whether or not it is governed by a “partnership of acquests” or “separation as to property” (see below in “what happens to my things when I get married?” for a full explanation of your patrimony and the matrimonial regimes of “partnership of acquests” and “separation as to property”) CCQ 414-426
When married, not only does your patrimony change, but you also get a family patrimony. For further information, please see “Family Patrimony” below.
Therefore, it is very important to understand what is in your family patrimony and how your personal patrimony changes when you get married.
What is a family patrimony? (shared with your spouse)
The family patrimony is created when you get married, and it is equally shared between you and your spouse. It is automatically created when you get married – you do not need to sign anything or go see a lawyer to establish it.
How is the family patrimony created?
The family patrimony is automatically created when you get married. You do not need to do anything.
What is in the family patrimony?
Broadly, it includes the items that both spouses need to live together as a couple.
It ONLY includes
- Family residence – where you and your spouse live most of the time, it can also include a secondary home
- Household furniture and decorations in the family residence – for example, couches, lamps, carpets and vacuums
- Motor vehicles used for family transport – for example, your car
- Retirement savings registered during the marriage under the Quebec Pension Plan, the Regime des Rentes du Quebec CCQ 415
What are some things that are never in the family patrimony?
- Items that one of the spouses received as a donation or through inheritance, either before or during the marriage, are never part of the family patrimony
- Items which are exclusively used by one of the spouses (e.g. computer, musical instrument, art etc)
- Cash and bank accounts
- Money received through benefit programs
- Speak with a lawyer for further information. Please see “Info & Help.”
What are my rights to the family patrimony?
You and your spouse have the exact same rights in the family patrimony, which means all decisions regarding buying, using, or selling the items within the family patrimony must be made together. Your spouse cannot take away your rights to the family patrimony– for example, you need the consent of both spouses to sell the family residence, or to mortgage it.
CCQ 414, 423, 424
What happens to the family patrimony if I get divorced?
In the case of divorce or legal separation, the items within the family patrimony will be divided equally between the two spouses. The value of the family patrimony is established at the time of filing for divorce. It is considered to be against public order for the spouses to agree that the family patrimony not be equally shared if there is a divorce, and therefore any document that tries to divide it unequally is not valid and therefore not enforceable. However, if something within the family patrimony was owned by one of the spouses before the marriage, then it is not split equally, but the original owner receives whatever value he/she had at the time of marriage; however, the value of any improvements made to the items within the family patrimony since the marriage are normally split equally between the spouses once they are divorced. This is a very complicated area of the law, and it is important to speak with a lawyer to make sure you understand what you are owed.
Be aware that this 50/50 split does not necessarily apply to things falling within your “personal patrimony.” What happens to things outside the family patrimony depends on your “matrimonial regime.” See “Personal Patrimony” directly below for further information.
For a more detailed answer, please see “I want to leave my partner” for more information.
What is a personal patrimony? (NOT shared with your spouse)
As soon as you are born, you have a patrimony. Your patrimony is like an imaginary box that the legal system has created that holds all the things you own (your private property including things such as your car, your oven, your hairbrush etc.). It also includes your debts – the money you owe other people.
When you get married, a family patrimony is automatically created and has certain items in it that are considered to be shared (see “Family Patrimony” above, but these include the family residence, the household vehicle/decorations, the family motor vehicle and earnings made under the Quebec Pension Plan). However, even though the creation of the family patrimony means that some items become shared when you are married, you always keep your personal patrimony.
How is the personal patrimony created?
Your personal patrimony is created automatically at birth.
What is in the personal patrimony?
Before getting married, everything that is yours is a part of your personal patrimony.
After getting married, two things happen:
- You get a family patrimony – things that were once in your patrimony can move into the family patrimony.Sarah buys a house. That house is part of her patrimony. She then meets Fred and they decide to get married. After the marriage, Fred moves in with Sarah. Given that Sarah’s house is considered to be their family residence, it is now considered to be a part of the family patrimony. Therefore, once married the house is no longer in her personal patrimony, but in the family patrimony.
This essentially means that any major decisions regarding the house (such as selling it) needs to be made by both spouses, and in the event of divorce, the value of the house is split in half between the two spouses if the house was bought during the marriage. If something within the family patrimony was owned by one of the spouses before the marriage, then it is not split equally, but the original owner receives whatever value he/she had at the time of marriage; however, the value of any improvements made to the items within the family patrimony since the marriage are normally split equally between the spouses once they are divorced. This is a very complicated area of the law, and it is important to speak with a lawyer to make sure you understand what you are owed.
- You still have your personal patrimony, but how it is organised changes. The law has labeled the things you own (the things falling within your personal patrimony) as either PRIVATE PROPERTY or ACQUESTS. This includes movables (things you can move, such as a chair or a carpet) and immovables (things attached to the land, such as a built-in refrigerator).
What is the difference between private property and an acquest?
Personal patrimony = private property (things you had before the marriage) + acquests (anything that increases or decreases what you had before the marriage)
- Spouses’ income
- Before you are married, your income is called private property
- After you are married, your income is called an acquest
- Clothing, personal papers
- Private property
- Wedding ring, decoration and diplomas
- Private property
- Land bought with income made after marriage
What are my rights to the personal patrimony?
You have the right to keep, use, or sell the items within your personal patrimony.
What happens to my personal patrimony if I get divorced?
In the case of divorce or separation, the items within your personal patrimony are kept or divided according to whichever matrimonial regime you have with your spouse. Your family patrimony is always shared equally between the two spouses.
However, if something within the family patrimony was owned by one of the spouses before the marriage, then it is not split equally, but the original owner receives whatever value he/she had at the time of marriage; however, the value of any improvements made to the items within the family patrimony since the marriage are normally split equally between the spouses once they are divorced. This is a very complicated area of the law, and it is important to speak with a lawyer to make sure you understand what you are owed.
For a more detailed answer, please see “I want to leave my partner” for more information.
What is a matrimonial regime?
Your rights and obligations regarding your personal patrimony are governed by the matrimonial regime which is made official in a notarial contract (a notarial contract is one where a lawyer or a public notary signs the document saying the information is correct).
The matrimonial regime is the system of rules that is used to determine the economic/financial relationship between spouses, so who owns what, how it can be used, and how the property will be divided if the marriage breaks down (there are several ways a marriage can break down – see “I want to leave my partner” for further information as to what effects the type of separation has on your patrimony).
There are 2 kind of matrimonial regimes: PARTNERSHIP OF ACQUESTS and SEPARATION AS TO PROPERTY
! Unless you have a contract, your patrimony and the patrimony of your spouse are automatically governed by the PARNTERSHIP OF ACQUESTS.
1. PARTNERSHIP OF ACQUESTS – what is it?
The matrimonial regime of partnership of acquests is the name for one type of rules that apply to the division of your things if you divorce or separate from your spouse. Unless a marriage contract is signed before the marriage, the matrimonial regime is automatically partnership of acquests.
How does partnership of acquests work?
In this system, the things you own are divided into two categories: ACQUESTS and PRIVATE PROPERTY.
|All items and debts which have been acquired DURING the marriage are called “acquests.”For example, the wages that your spouse makes after your wedding, or anything he might buy using the money he earned after you got married, or the interest that is made on the money in the bank since you got married.||All items and debts which are acquired by each spouse BEFORE the marriage. However, it also includes things that you acquire after being married, such as: inherited items, gifts, clothing, money received as a compensation for physical injury, instruments necessary for work etc.|
Remember! The family patrimony is separate, and is NOT governed by the matrimonial regime of the partnership of acquests.
In case of divorce, the value of things falling within the family patrimony are normally split in half between the two spouses (however, deductions can be made if items within the family patrimony were owned by one of the spouses before the marriage)
If you divorce your spouse, the value of the acquests are shared equally between the spouses, but the private property is not shared.
What happens to my things if I didn’t sign a contract explaining how things would be divided in case of divorce, and now I am divorcing my spouse?
In case of divorce or separation, ONLY the acquests will be shared between the spouses (this means that both spouses are able to profit from the other’s benefits during the marriage). Private property is NOT shared. See the “I want to leave my partner” section for more information.
! Remember that even when you get married, items such as: gifts, objects of inheritance, etc. fall under private property and therefore are NOT divided when there is divorce or separation because they are considered private property.
! Also remember that items falling within the family patrimony are shared automatically, irrespective of your matrimonial regime.
2. SEPARATION AS TO PROPERTY – what is it?
In this matrimonial regime, you set your own terms as to what will happen to your own things (things within your personal patrimony) in case you and your spouse separate. “Separation as to property” is the legal term for signing a pre-nuptial agreement or marriage contract.
How does the contract work?
For separation as to property to apply, you need a notarial contract (a written agreement between you and your spouse that is signed by a lawyer or a public official).
The contract establishes that all property that does NOT FALL within the family patrimony remains in the possession of each spouse. Each spouse can use the property as he or she wishes, regardless of whether it was acquired before or after the marriage (CCQ 486). To generalise, this means that in a situation of “separation as to property,” there are no acquests. Everything that does not fall within the family patrimony is considered private property.
! It is often recommended that expensive purchases be bought as undivided co-ownership, which means that their value will be split in half in
case of divorce. As co-owners, both spouses own the property, and therefore both have an equal right to the owned object. While in partnership of acquests, ownership is not important, in “separation as to property,” who gets to keep the item is determined by who owns the item.
Always speak with a lawyer for clarification.
What happens if we divorce under the matrimonial regime called “separation as to property”?
If case of divorce or separation, ONLY the family patrimony is shared. What happens to the things that are not shared by the family is determined in your contract. It therefore is very important that you think very carefully about what you put in the contract, and speak with a lawyer to make sure that you are properly protected and that the contract can be enforced.
CCQ 485, 486, 487
Will my marriage contracted in another country be recognized in Canada?
Yes, your marriage will be recognized as long as it was legal in both the country where you got married and here in Canada. You must have fulfilled the necessary conditions for a legal marriage in the country in which you were married, such as being the appropriate age. However, even if a foreign marriage is valid in the country where it was performed, it will be prohibited in Canada under certain conditions.
Prohibited marriages include: marriages between people who are related in your direct line (brother, sister), under-age marriage (16 with parental consent, otherwise 18), non-consensual marriages (forced marriage), and marriages to individuals who are married to someone else. In fact, polygamy is a crime under the Canadian Criminal Code.
Will my divorce from another country be recognized in Canada?
For divorces that took place on or after June 1st 1986 in a foreign country the following rule applies: Yes, Canada will recognize the divorce if at least one of the spouses lived for a minimum of 1 year in the country where the divorce was granted. The minimum of 1 year is calculated backwards from the initiation of the divorce proceedings.
For example, if you got divorced in another country in 1990 and you or your husband lived in that same country for at least 1 year before you started your divorce procedure, the divorce will be recognized in Canada.
I got married in another country and am now living in Canada. How do I get a divorce?
As long as you are considered to be legally married and as long as one of the spouses has been living in a single Canadian province or territory for 1 year, you can get divorced in that province. What this means is that all aspects of your divorce will be regulated by that province and the Federal laws, including child custody. Sometimes, there are religious rules that might apply in your country of origin regulating for example, where the child will live after the divorce. These rules do not apply in Canada.
Is a religious marriage recognized in Quebec?
In order for a religious marriage to be recognized you have to follow the rules on celebrations of marriages in Quebec. This includes signing a declaration of marriage, and having that declaration of marriage sent to the Registrar of Civil Status by the official who performed your marriage.
If I get a religious divorce in Canada, does this mean I am legally divorced?
No, a divorce in Canada will only be recognized if it has been pronounced by a judge. As a result, a religious divorce does not constitute a legally valid divorce.
For example, if you were granted a divorce under religious law, but not under Canadian law, you will not be able to remarry in Canada because your first marriage would still be in effect, and polygamy is not allowed as it is a crime here in Canada.
If I undertake religious counselling or arbitration, will the results be enforceable?
The results of religious arbitration are not enforceable by Quebec courts.
I have a religious marriage contract with my husband, in it we agree to certain things in keeping with our religious tradition. Will this contract be enforced by the courts?
If you signed a contract that contains clauses related to religious traditions, a court has the power to review or enforce the clause. The validity of such clauses will depend on whether or not they respect contract law, policies and democratic values of Canadian law.
For example, imagine that, before your marriage, you and your husband agreed in a contract that he will pay you $10,000 if you separate in accordance with your religious tradition. If your husband refuses to pay the $10,000 when you separate, you can ask the courts to order him to do so. Before making that order, the courts will look at the contract you created and decide whether it meets the requirements that the Civil Code of Quebec sets out for the formation of contracts.
My spouse refuses to divorce me under religious law. What can I do?
The court does not have the power to grant a religious divorce and they cannot really force a person to seek a religious divorce. However, the court does recognize the inconvenience that this might cause the party who wishes to remarry. If your spouse has not consented to the religious divorce you can present a sworn statement to the court explaining that fact. The statement must include all details required by the Divorce Act .
At that point, not only could you obtain monetary compensation for the inconveniences that your spouse’s refusal to grant the religious divorce has caused, but as well within the actual divorce proceeding the spouse who withholds the religious divorce might be denied certain rights and refused certain requests. For example, if the spouse refusing the religious divorce is requesting the right to the partition (division) of certain assets, this request could be refused and you could be declared full owner. By doing this, the court hopes to encourage the spouse to grant the religious divorce but the court is unable to actually force an individual to remove the religious barrier to remarriage and cannot grant the religious divorce.
Bear in mind that this does not stop you from legally ending your marriage; you can still get a legal divorce.
What is a prenup?
A prenup is a contract written before marriage by the two spouses where they agree on the rights and obligations they owe one another, as well as how their things will be divided in case the marriage ends through separation or divorce. It is the same thing as a marriage contract, except it is written before you are married.
I signed a marriage contract. Can it be enforced?
If you signed a marriage contract, it can be enforced so long as it conforms to contract law. For example, for a contract to be enforceable, both parties need to have been aware of what they were agreeing to. Furthermore, for a contract to be enforceable it cannot have been signed in bad faith, or have effects that go against public order.
Can I change matrimonial regimes?
Yes. You have to go see lawyer. For example, if you decide after a year you rather your matrimonial regime be “separation as to property” as opposed to “property of acquests,” you can write a notarised contract (a written agreement written between yourself and your spouse that is verified and signed by a lawyer. You should always speak with a lawyer before making any decisions.