What is a marriage contract?

14 March 2022 by National Bank
A couple plays with their child in the living room.

Decided to get married rather than stay in a common-law relationship? Legally speaking, marriage is an agreement between the two members of a couple, governed by laws. Although it’s optional, it may be wise to sign a marriage contract, which goes beyond what is provided for by law. Here’s how it works and its advantages.

What is a marriage contract?

A marriage contract is a legal document that you sign voluntarily. It defines your matrimonial regime and each spouse’s contribution to the household expenses. It’s a document that governs how the couple’s finances are managed and how property excluded from the family patrimony is distributed in the event of divorce or death.

It applies only to married people. Common-law spouses may enter into a similar agreement, but it’s called a “cohabitation agreement.”

Note: A marriage contract is not the same as a marriage certificate. A marriage certificate is another official document issued by your province’s register of civil status that proves your marriage. Also be aware that civil status is under the jurisdiction of provinces and territories, which may have specific rules. Call on professionals for help understanding the rules specific to your place of residence.

If a marriage contract doesn't seem right for you, have you considered a cohabitation contract instead?

What is the purpose of a marriage contract?

It defines how assets will be divided in the event of divorce

Throughout their marriage, a couple accumulates property and assets that make up what is called the family patrimony. It includes family residences, furniture and vehicles. Money in retirement plans accumulated during the marriage (such as an RRSP or pension fund) is also considered part of the family patrimony. 

In the event of divorce, the law provides for the division of the value of that patrimony. Even a marriage contract cannot change the distribution. However, certain assets are excluded, such as company shares, certain investments, TFSAs, assets acquired before marriage, gifts and inheritances. A marriage contract can specify whether and how these items are to be divided.

It allows you to choose the matrimonial regime

The main advantage of a marriage contract is that it allows spouses to choose the separation as to property regime or create their own matrimonial regime in the event of a breakup. 

This makes for a clear agreement. It’s easier to talk about a possible separation when everything is going well, as communication tends to break down at the time of a divorce.

When should you sign a marriage contract?

You can sign a marriage contract at any time.

However, if a marriage contract is signed before the ceremony, it takes effect on the day of the ceremony. If it is signed after, it takes effect on the date it is signed.

How do you draw up and amend a marriage contract?

In Quebec, a marriage contract must be drawn up by a notary and signed in their presence. Elsewhere in Canada, spouses usually consult their own lawyer to negotiate the best possible agreement. 

It’s a very standard document, which notaries or lawyers adapt to each situation. They attach each spouse’s list of assets to it. These lists clearly show what each of you owned, and what will therefore not be shared.

A marriage contract can be amended, or a new one can be signed. The people involved must obviously be present and in agreement.

How much does a marriage contract cost?

When you use a notary to complete a marriage contract, you will be billed according to their fees. It will cost around a few hundred dollars depending on the professional. 

In Quebec, a fee of $44 to $52 must be added to the cost of publishing the contract in the Register of Personal and Real Movable Rights.

What types of matrimonial regime are there?

In Quebec, there are three main matrimonial regimes. 

  • Partnership of acquests (default regime): Under this regime, the value of property accumulated during the marriage (acquests) is shared. However, spouses may exclude their private property unless it’s part of the family patrimony. Property acquired before marriage or received as an inheritance is also considered private property. In addition, debts are taken into account when the list of acquests is drawn up. You may waive the division of your spouse’s acquests if they have debts.
  • Separation as to property: This regime can only be established by a notarized marriage contract. It does not result in any division of property accumulated during the marriage, with the exception of family patrimony. In the event of divorce, each spouse keeps their own property, and joint property is shared equally.
  • Community of property: Under this regime, the husband administers the joint assets alone during the marriage. However, he needs his wife’s support in some cases, such as selling the house. In the event of divorce, ownership of the joint assets is split 50/50 unless the wife waives it.

Elsewhere in Canada, the most common matrimonial regime is separation as to property. 

You may even be able to tailor your marriage regime under a marriage contract if you wish. The only condition is that it must comply with the law.

Good to know: In Quebec, in the absence of a marriage contract, the matrimonial regime to which you are subject depends on the date of your union. 

  • Those married before July 1, 1970, must follow the community of property regime. 
  • Those married after that date must instead comply with the partnership of acquests regime.
  • As a result, you can access the separation as to property regime only through a marriage contract.

What can a marriage contract contain?

In addition to the division of property upon divorce, a marriage contract may contain other clauses. Here are the two most common ones:

  • Testamentary clause: Under this clause, the surviving spouse will inherit all the property of the spouse who dies first.
  • Gifts: The marriage contract may provide for gifts to one of the spouses or the couple’s children. Such gifts can be made during your lifetime or upon your death. Note: Only gifts related to a death will become null and void in the event of divorce, while gifts between living persons will remain valid. You must therefore really want to dispose of such assets, whether or not you break up.

Nevertheless, in addition to having a marriage contract, it’s a good idea to draw up a will and think about how your assets will be transferred following your death. This could include gifts to others, the name of your executor, a guardian for your minor children, etc. You could also create a trust.

Lastly, if you’re married or are thinking of getting married, signing a marriage contract might make sense. Take the time to discuss and agree on the various financial issues. Feel free to ask for help to guide you through the process. Our specialists can provide the information you need to make a decision and advise you on the financial aspect of your contract. We’re here to answer your questions.

Legal disclaimer

Any reproduction, in whole or in part, is strictly prohibited without the prior written consent of National Bank of Canada.

The articles and information on this website are protected by the copyright laws in effect in Canada or other countries, as applicable. The copyrights on the articles and information belong to the National Bank of Canada or other persons. Any reproduction, redistribution, electronic communication, including indirectly via a hyperlink, in whole or in part, of these articles and information and any other use thereof that is not explicitly authorized is prohibited without the prior written consent of the copyright owner.

The contents of this website must not be interpreted, considered or used as if it were financial, legal, fiscal, or other advice. National Bank and its partners in contents will not be liable for any damages that you may incur from such use.

This article is provided by National Bank, its subsidiaries and group entities for information purposes only, and creates no legal or contractual obligation for National Bank, its subsidiaries and group entities. The details of this service offering and the conditions herein are subject to change.

The hyperlinks in this article may redirect to external websites not administered by National Bank. The Bank cannot be held liable for the content of external websites or any damages caused by their use.

Views expressed in this article are those of the person being interviewed. They do not necessarily reflect the opinions of National Bank or its subsidiaries. For financial or business advice, please consult your National Bank advisor, financial planner or an industry professional (e.g., accountant, tax specialist or lawyer).