In a marriage contract, the spouses and future spouses can choose their matrimonial regime, indicate who will receive property after the death of one of the spouses, and provide for gifts to one of the spouses or to the children.
|Couples in a civil union can have a similar contract, but it’s called a "civil-union contract” because a civil union is different from a marriage.|
Your Notary... A Valuable Partner
A marriage contract must be notarized, which means the spouses must sign it in front of a notary. For advice on how a marriage contract can be useful in your situation, don’t hesitate to contact a notary.
When to Sign a Marriage Contract
The spouses can sign a marriage contract before they are married; it will come into effect on the day of the marriage. A person under the age of 18 who wants to get married needs the court’s approval to sign a marriage contract, and the court will ask the parents for their opinion.
The spouses can also sign a marriage contract after they are married; it will come into effect on the day they sign it. For example, if the purpose of the contract is to change the spouses’ matrimonial regime, it will end the matrimonial regime that applied from the day they were married until the day they signed the marriage contract. Therefore, property the spouses acquired before they signed the contract might have to be partitioned or divided. You can contact a notary to learn more about the consequences of signing a marriage contract after you get married.
Advantages of Signing a Marriage Contract
Choosing a Matrimonial Regime
Spouses and future spouses can choose the matrimonial regime that is right for them in a marriage contract. A matrimonial regime provides the rules for managing the spouses’ property while they are married and at the end of the marriage, for example, if the spouses divorce or if one of them dies.
Spouses can enter into a marriage contract to choose a matrimonial regime such as separation as to property or create a regime that meets their particular needs, as long as it’s not against the law.
Couples can use a marriage contract to establish more flexible rules based on their objectives.
Spouses and future spouses can provide for gifts to the other spouse or to the children in a marriage contract, though this is not very common.
Gifts can include property, buildings or money.
Making Gifts That Take Effect When a Spouse Dies
Spouses can use a marriage contract to make gifts after they die, but only to the other spouse or the children. A marriage contract is therefore more limited than a will because anyone can inherit under a will. A marriage contract therefore protects the spouse and their children if one of the spouses dies.
A marriage contract can also contain a "conventional appointment" or "surviving spouse" clause. In other words, the property of the spouse who dies first goes to the spouse who is still alive. It’s an alternative to having a will.
Here are some examples of what a surviving spouse clause can mention:
- a specific piece of property
- a category of property
- all of the spouse’s property
These gifts can be changed by a will, unless the marriage contract says they are "irrevocable,” that is, they can’t be changed. In this case, the person who was originally supposed to receive a gift under the marriage contract must agree to the change.
If you are divorced, you should contact a lawyer to learn whether you still have to give your former spouse the gifts you promised in your marriage contract.
Changing Your Marriage Contract
Spouses can make changes to their marriage contract at any time. They can make changes to their existing contract, or they can make a new marriage contract. However, the new marriage contract must be signed in the presence of anyone mentioned in the first marriage contract and with their consent.
A creditor who suffers damage when spouses change a marriage contract can ask the court for a judgment stating that the changes don’t apply to him. For example, a husband gives his wife a car under a marriage contract to prevent the dealer from seizing the car. The dealer can ask the court to authorize the seizure, even if the marriage contract says that the car is a gift from the husband to the wife.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.