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Marriage contracts: I do!

13 June 2018 by National Bank
marriage contracts

Since all married couples are obliged to share the family patrimony in the event of divorce or death, when is it a good idea to have a marriage contract as well?

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A marriage contract determines the rules that govern a couple’s financial affairs. It outlines each party’s contribution to household expenses and the division of assets in the event of divorce or death. It only applies to married couples. Common-law spouses can have a similar agreement, known as a cohabitation agreement.

Defining family patrimony

The law stipulates that a married couple’s family patrimony be divided in the event of divorce or death. The patrimony includes numerous items such as family residences, the objects inside the home, and any family vehicles. Money from a pension plan (registered retirement savings plan, pension fund) accumulated during the marriage must also be divided.

Some things, however, are excluded, such as company shares and investments. The same goes for gifts and inheritances. As such, a marriage contract can determine which of these items are divisible in the event of death or divorce.

The main advantage of a marriage contract is to have a clear agreement between spouses. It’s easier to talk about it when things are going well—waiting until you’re in the middle of a divorce can make it harder.

Drafting and modifying a marriage contract

A marriage contract is usually drafted by a notary and the spouses sign it in front of them. It is an opportunity to declare each spouse’s assets, clearly stating what each partner owned before the marriage and which will therefore not be divided. Keep in mind that when you sign a marriage contract before your wedding, it comes into effect on the day of the marriage. If you sign it after you’re married, it comes into effect on the day you sign it.

You can modify a marriage contract or sign a new one. Obviously, the concerned parties must be present and in agreement. Either way, your notary can inform you of the different legal and material consequences of the document.

Choosing a matrimonial regime

In Quebec, there are three main types of matrimonial regimes.

  • Separation as to property: This type of regime can only be established by a court judgment or a notarized marriage contract. It includes no division of property accumulated during the marriage, except for the family patrimony. In the event of divorce, each party leaves with their own property and the joint assets are divided equally.
  • Partnership of acquests: This type of regime stipulates the value of property accumulated during the marriage (acquests). It also allows spouses to exclude their private property. Property acquired before the marriage and inherited property are also considered private property. Debts are taken into account when drawing up the list of acquests. The division of acquests can be waived if one of the parties has significant debts.
  • Community of property: This type of regime stipulates that the husband alone manages the common property during the marriage, but he needs his wife’s consent in certain instances, such as the sale of a house. If the couple divorces, the common property is divided 50/50, unless the wife renounces it.
  • If you like, your marriage contract can even allow you to create your own custom matrimonial regime under one condition: it must be legal.

    In the absence of a marriage contract, the type of matrimonial regime depends on the date of your marriage. Couples married before July 1st, 1970, are subject to the community of property regime. Those married after that date are subject to the partnership of acquests.

    What can be included in a marriage contract?

    Along with the division of property in the event of divorce, a marriage contract can include other clauses. Here are the two most common.

    • Testamentary provision: Also commonly called a “surviving spouse” clause. It stipulates that the surviving spouse inherits the entirety of the property of the spouse that has died.
    • Gifts: A marriage contract can provide for gifts to a spouse or to the couple’s children. These gifts can be made while you are alive or at the time of your death. It’s important to note that only gifts related to a death will be nullified in the event of divorce. Those between living people will remain in effect—so you need to be truly sure that you want to part with your property, divorce or no divorce.
    • With that in mind, it’s a good idea to draft a will and think about how you want your patrimony to be divided when you die. That way you can stipulate that gifts be made to other people, name your executor, appoint a legal guardian for your dependent children, etc. You may also want to create a trust.

      Whether you’re married or thinking about getting married, signing a marriage contract is always a good idea. You and your partner can discuss a variety of financial matters and come to an agreement. Signing a marriage contract is a good opportunity to figure out what’s best for each spouse and make choices based on your goals and values.

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