Marriage Contracts in Quebec

In Quebec, prenuptial agreements are referred to as marriage contracts (contrats de mariage). These contracts are governed by the Civil Code of Québec (C.C.Q.), which provides a distinct legal framework compared to other Canadian provinces. The relevant provisions are primarily found in Book Two, Title Two, Chapter VI of the C.C.Q.

Purpose of a Marriage Contract

A marriage contract allows prospective spouses to choose a matrimonial regime. The default regime in Quebec is the partnership of acquests (régime de la société d’acquêts).

C.C.Q., art. 432 provides:

“Spouses who, before the solemnization of their marriage, have not fixed their matrimonial regime in a marriage contract, are subject to the regime of partnership of acquests.”

What is “Partnership of Acquests”?

It’s a type of property regime that divides the spouses’ property into two categories:

Private property (not shared): Includes what each spouse owned before the marriage, gifts, inheritances, etc.

Acquests (shared): Property acquired during the marriage through work, savings, investments, etc.

When the marriage ends (by divorce or death), the value of the acquests is divided equally between the spouses, but the private property is not shared.

However, with a marriage contract, spouses can opt for the separation as to property (séparation de biens) regime or establish a custom regime, provided it complies with public order and mandatory provisions of the law.

C.C.Q., art. 485 provides:

“The regime of conventional separation as to property is established by a simple declaration to this effect in the marriage contract.”

Under the separation as to property regime, there is no pooling or sharing of assets or debts, unless both spouses have agreed otherwise (e.g., through co-ownership or joint contracts). Each spouse owns and manages their property independently. There is no division of property when the marriage ends, instead each spouse keeps what they individually own. One spouse isn’t liable for the other’s debts.

Marriage contracts can include other stipulations: Any other clauses that are not contrary to public order or mandatory provisions can be included.

C.C.Q., art. 431provides:

“Any kind of stipulation may be made in a marriage contract, subject to the imperative provisions of law and public order.”

Formal Requirements

For a marriage contract to be valid in Quebec:

• Notarial Act: The contract must be executed as a notarial act (acte notarié en minute), meaning it must be signed before a notary.
• Registration: A notice of the marriage contract must be entered in the register of personal and movable real rights.

C.C.Q., arts. 440 – 442 provide:

“440. Marriage contracts shall be established by a notarial act en minute, on pain of absolute nullity.

441. The notary executing a marriage contract changing a previous contract shall immediately notify the depositary of the original marriage contract and the depositary of any contract changing the matrimonial regime. The depositary is bound to enter the change on the contract and on any copy he may make of it, indicating the date of the contract, the name of the notary and its minute number. The notation of the change may be made on the contract or, if applicable, on a copy of it or on a writing attached to the contract or copy, directly or by a reference.

442. A notice of every marriage contract shall be entered in the register of personal and movable real rights at the requisition of the officiating notary.”

Timing of the Contract

A marriage contract can be signed:

• Before marriage: In this case, the chosen matrimonial regime takes effect on the day of the marriage.
• After marriage: Spouses can change their matrimonial regime during the marriage by signing a new marriage contract. The new regime takes effect on the date of the new contract.

C.C.Q., arts 433 provides:

“A matrimonial regime, whether legal or conventional, takes effect on the day when the marriage is solemnized.

A change made to the matrimonial regime during the marriage takes effect on the day of the act attesting the change.

In no case may the parties stipulate that their matrimonial regime or any change to it will take effect on another date.”

C.C.Q., arts 438 provides:

“During marriage, spouses may change their matrimonial regime and any stipulation in their marriage contract, provided the change itself is made by marriage contract.

Gifts made in marriage contracts, including gifts mortis causa, may be changed even if they are stipulated as irrevocable, provided that the consent of all interested persons is obtained.

If a creditor suffers injury as the result of a change to a marriage contract, he may, within one year of becoming aware of the change, obtain a declaration that it may not be set up against him.”

Family Patrimony (Patrimoine familial)

Regardless of the chosen matrimonial regime, Quebec law imposes the concept of family patrimony, which includes:

• Residences used by the family.
• Household furnishings.
• Motor vehicles used for family transportation.
• Rights accrued under pension plans.

Upon dissolution of the marriage, these assets are divided equally between the spouses, regardless of ownership.

C.C.Q., art. 415 provides:

“The family patrimony is composed of the following property owned by one or the other of the spouses: the residences of the family or the rights which confer use of them, the movable property with which they are furnished or decorated and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan. The payment of contributions into a pension plan entails an accrual of benefits under the pension plan; so does the accumulation of service recognized for the purposes of a pension plan.

This patrimony also includes the registered earnings, during the marriage, of each spouse pursuant to the Act respecting the Québec Pension Plan (chapter R-9) or to similar plans.

The earnings contemplated in the second paragraph and accrued benefits under a retirement plan governed or established by an Act which grants a right to death benefits to the surviving spouse where the marriage is dissolved as a result of death are, however, excluded from the family patrimony.

Property devolved to one of the spouses by succession or gift before or during the marriage is also excluded from the family patrimony.

For the purposes of the rules on family patrimony, a retirement plan is any of the following:

 — a plan governed by the Supplemental Pension Plans Act (chapter R-15.1) or by the Voluntary Retirement Savings Plans Act (chapter R-17.0.1) or that would be governed by one of those Acts if one of them applied where the spouse works;

 — a retirement plan governed by a similar Act of a legislative jurisdiction other than the Parliament of Québec;

 — a plan established by an Act of the Parliament of Québec or of another legislative jurisdiction;

 — a retirement-savings plan;

 — any other retirement-savings instrument, including an annuity contract, into which sums from any of such plans have been transferred.”

Gifts and Donations

A marriage contract can include provisions for:

• Inter vivos gifts: Gifts made during the lifetime of the spouses.
• Mortis causa gifts: Gifts that take effect upon the death of a spouse.

Such provisions can be made irrevocable, meaning they cannot be changed without the consent of both parties.

Validity of Marriage Contracts Made Outside Quebec

If a couple signed a prenuptial agreement (marriage contract) outside Quebec but later lives in Quebec at the time of their separation, that contract may still be valid and enforceable in Quebec, with important limitations.

Quebec’s Private International Law Applies

Under Book Ten of the Civil Code of Québec (articles 3080–3168), the applicable matrimonial regime is generally determined by:

• The law of the place where the spouses had their first common habitual residence after marriage; or
• The law chosen in the marriage contract, provided it is the law of a place where at least one spouse had citizenship or residence at the time of the marriage.

C.C.Q. article 3122:

“The law applicable to a conventional matrimonial or civil union regime is determined according to the general rules applicable to the content of juridical acts.”

Example: If a couple lived in Ontario after their wedding and signed a prenup under Ontario law, Quebec will generally respect that regime.

If you and your spouse lived in different provinces at the time of marriage – for instance, if one of you lived in Ottawa, and the other in Gatineau – the domicile is the law of your first common residence. So, in this example as long as you and your partner initially live in Ontario rather than Quebec, this means that an Ontario prenup would be valid in Quebec.

Family Patrimony Cannot Be Waived

Even if a foreign marriage contract is valid, it cannot override Quebec’s mandatory family patrimony rules, which apply to all married couples domiciled in Quebec at the time of separation. According to section 423 of the Civil Code:

“The spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony.”

What’s included in family patrimony?

• Family residences (owned or used)
• Furniture in those residences
• Vehicles used for family transport
• Pension plan contributions and RRSPs

So, in short, assets that are included in the family patrimony would be divided by Quebec law regardless of what the prenup said, and the remaining assets would be divided according to your prenup.

Foreign Contracts Must Be Valid Where Signed

A marriage contract that is not in notarial form (as required in Quebec) can still be effective if it meets the legal formalities of the place where it was made.

Example: A prenuptial agreement made under Ontario law may be valid in Ontario, even if it was not notarized in Quebec, as long as it complies with Ontario’s legal standards.

Conclusion

Marriage contracts in Quebec provide a legal means for spouses to define their matrimonial regime and make provisions for property and gifts. While offering flexibility, they are subject to formal requirements and certain mandatory provisions, such as the family patrimony rules. Consulting a notary is essential to ensure the contract complies with Quebec law and accurately reflects the intentions of the parties.