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Married and Civil Union Spouses - The Consequences of Your Union

The Legal Aspects of Marriage

You would prefer to get married rather than live as de facto spouses or have a civil union? Weddings take time to plan; you will have to decide between a civil or religious ceremony and respect other formalities. Of course marriage is a serious commitment, but do you fully understand what you are getting into?

In this Infosheet, Éducaloi explains the rules of marriage, including any necessary formalities, the ceremony, and details the rights and responsibilities that arise from marriage.

What is the legal definition of marriage?

From a legal perspective, marriage is a contract based on the free and enlightened consent of two people. It must be solemnized in public before a legally recognized officiant in the presence of two witnesses.

Who is allowed to marry?

Marriage can only take place between two people who are at least 16 years old. In Canada, marriage between same-sex spouses is legal.

To be able to marry, each person must be free of any marital or civil union bond; the person must be single, widowed, divorced or have annulled or dissolved any previous marriage or civil union.

If the future husband or wife is less than 18 years old, they must first obtain consent to the marriage from their parents or tutor. For more information, you can consult the Infosheet entitled Parental authority.

Marriage is illegal between people related in the following degrees (either biological or adoptive):

• brother and sister;
  
• half-brother and half-sister;
  
• parent and child;
  
• grandfather or grandmother and grandchild.

A marriage cannot take place if one person is incapable of giving free and enlightened consent (for example, if they lack the power of discernment due to mental illness). Any such marriage that takes place can be annulled.

What are the differences between a religious and a civil ceremony?

The main differences are as follows:

• the status of the officiant;
  
• where the ceremony takes place;
  
• conditions specific to the chosen religion.

A properly performed marriage has the same legal value whether it is a civil or religious marriage. In both cases, you will have the same rights and responsibilities toward your spouse.

What formalities must be completed prior to the marriage?

For a civil ceremony, you must meet with an officiant designated by law, while for a religious ceremony you need to meet the person authorized by the chosen religion (for example, a priest, pastor, rabbi, or imam). You will have to complete and sign a form and pay the required fees.

A notice of your marriage must be posted where the ceremony will take place 20 days prior to the marriage. This is called the “publication of the banns”. But in special circumstances, the officiant may make an exception from publication or reduce the length of time the banns must be published, for example if one of the future spouses is seriously ill and wishes to marry before dying.

The notice announces the name and residence of each of the future spouses as well as their date and place of birth. This publication identifies the future spouses: it is intended to inform everyone of their intentions and the officiant can then be alerted of any obstacle to the marriage, for example if the future spouses are related in a degree that prohibits them from marrying or if one of them is already married to someone else.

The officiant must inform you that it is possible to undergo a prenuptial medical examination, although this is not compulsory.

Although not a condition, it is recommended that the future spouses meet a notary and draft a marriage contract in which they stipulate their matrimonial regime, otherwise they will be subject to the legal regime of partnership of acquests. For more information, see the Infosheets on these topics in this section.

Who may perform a marriage?

A marriage must be performed by a legally recognized officiant in order to be valid. For civil ceremonies, the officiant will be a clerk or deputy clerk of the Superior Court, appointed by the Minister of Justice.

Since 2002, other possible officiants include notaries able by law to receive notarial acts, as well as any person designated by the Minister of Justice (in a designated territory), such as mayors, other members of municipal councils or borough councils and municipal public servants.

It is also possible for a civil marriage to be conducted by a person who doesn’t belong to any of these categores – an old friend who is particularly eloquent or spiritual, for example. To do this, you need to make a written application to the Minister of Justice, using the form provided for this purpose. The person has to fulfill certain conditions:

• Be an adult and not subject to a regime of protective supervision;
  
• Not have any criminal record for the past three years;
  
• Have Canadian citizenship or permanent resident status in Quebec.

The person must also observe the mandatory steps for the ceremony, to the letter (see the question “What will happen during the wedding ceremony?”, below).

For religious ceremonies, the officiant will be the religious minister who is authorized by the chosen religion to preside over such ceremonies. In addition, the Minister of Civil Status must authorize the religious ceremony. Bear in mind that a priest or religious minister is perfectly entitled to refuse to perform your marriage if it doesn’t conform to the conditions particular to his religion or if there is a reason, according to his religion, that prevents you from marrying.

What must the officiant do prior to the ceremony?

The officiant must ensure that the future spouses satisfy the legal requirements, particularly in terms of their age, civil status, and capacity to consent.

For example, if one of the future spouses has already been married, the officiant must ensure that a final divorce judgment or annulment has been issued, or that the ex-spouse is deceased. The officiant must also ensure that the required formalities have been completed before the ceremony.

I have already been married. Can I remarry in a civil ceremony?

You can, as long as your previous marriage was dissolved by the death of your spouse, divorce or annulment. If you were in a civil union, the same conditions apply: you must be relieved of this previous bond first.

Attention: you cannot remarry if you have only obtained a separation from bed and board; this judgment does not terminate the marriage. You can also consult our Infosheet entitled Separation from bed and board for more information.

I have already been married. Can I remarry in a religious ceremony?

If your first spouse is deceased, you can certainly remarry in a religious ceremony, but this always depends on the religion. If your first spouse is not deceased, it all depends on how your first marriage was performed. In the Catholic religion:

• If it was performed in a church you must first obtain an annulment from the clergy before you can remarry in a religious ceremony.
  
  
• If it was a civil ceremony you can remarry in the church if you are divorced or if your first marriage was annulled by a court order.

Other religions have their own rules: you should consult the specific religious minister for more information.

Where can I get married?

A clerk or a deputy clerk of the Superior Court can perform a civil marriage in a courthouse. Any other authorized officiant may perform a civil marriage in a courthouse or in any other place agreed upon by the future spouses, as long as it is respectful of the solemn character of the ceremony and is prepared for this purpose. If one of the future spouses cannot physically go to such a location, the marriage can be performed in another location, such as a hospital or prison.

Traditionally, a Catholic wedding ceremony will be held in the parish church of the future wife, but you can ask the clergy to hold the ceremony in another parish. A religious minister may also agree to perform your ceremony elsewhere than in a church, temple or chapel; you should discuss this with him prior to marrying.

What will happen during the wedding ceremony?

The description below outlines only the basic, required legal formalities; you can personalize your ceremony according to your own tastes and beliefs.

The ceremony must take place in public before at least two witnesses. The officiant must read certain articles from the Civil Code of Quebec regarding the rights and responsibilities of spouses. After reading these five articles, the officiant will ask the spouses for their consent. Once you have both stated the traditional “I do,” the officiant will declare you united in marriage.

Finally, the officiant will sign and have you, your spouse, and your witnesses sign the declaration of marriage as written proof. The officiant will send this declaration immediately to the Registrar of Civil Status. If you wish to obtain a copy of this official document, you should address your request to the Registrar of Civil Status.

Also, take note that a civil ceremony by a clerk or deputy clerk of the Superior Court or in a courthouse can only take place Monday to Saturday between 9 a.m. and 4:30 p.m. Generally speaking it cannot take place on a legal holiday such as Christmas, Easter or June 24th. For civil ceremonies before notaries or any other authorized person and performed outside of a courthouse, the ceremony must be performed between 9a.m. and 10p.m., and can be performed on any day.

What are my rights and responsibilities once the marriage is performed?

Both spouses have the same responsibilities toward each other. They owe each other respect, fidelity, succour and assistance and must live together. The era of “father knows best” is over; both spouses manage the household, exercise parental authority over their children, and provide for their health and welfare. Together they select the family residence (see the Infosheet entitled The family residence) and contribute to household expenses such as lodging and food, in proportion to their respective means.

Spouses are equal in principle, but their contributions may differ. For example, one may contribute income earned, whereas the other may contribute by way of housework and childcare.

In addition, marriage creates a family patrimony, made up of certain specific belongings in which both spouses have the same rights, regardless of who is the official owner. The spouses are also subject to one of the matrimonial regimes recognized by law. You should consult the Infosheets on these subjects for more information: Family patrimony and Partnership of acquests.

Marriage makes it possible for spouses to claim things from each other that de facto spouses cannot, so it is in your best interest to inform yourself in advance.

What are the rules on spouses changing their names?

Generally speaking, both spouses keep their own names after marriage. All the spouses’ civil rights must be exercised under the name indicated on the birth certificate. This name will be used to sign a notarized contract or undertake legal proceedings, for example. We invite you to read our Infosheet entitled Changing your name.

Still, there is nothing to stop you from being known socially by your spouse’s name or adding their name to yours if you so desire - it is a matter of personal preference.