Marriage Contracts

Are you planning on getting married? Have you wondered about whether you should be signing a marriage contract or a "prenuptial agreement"?

 

Just because your parents and grandparents may have signed a marriage contract, does not mean that you should too.

 

Dating back to the 17th century, the signing of a marriage contract in Quebec was traditionally good for organizing property during marriage or in case of death. The tradition became so strong that even when it became evident that marriages might end because of divorce, couples continued to sign them.

 

The decision by a spouse to sign a marriage contract has consistently been interpreted by the Quebec courts as choosing not to share what the other spouse acquires during the marriage. Choosing to be separate as to property has resulted in the lower income spouse losing the automatic right to one half of the other spouse's savings, investments, and business assets upon divorce, although the spouse can still claim a lump sum payment and a compensatory allowance.

 

A review of the clauses in marriage contracts before the courts today indicate that they have remained remarkably similar both in terms of form and content since the 19th century. Despite the contractual freedom afforded to couples signing marriage contracts, notaries in practice usually limited the agreements to a few topics. The main clauses of all the contracts dealt with household expenses, inter vivos gifts of money and household effects, and mutual donations in the event of death.

 

While there are now progressive notaries who are trying to modernize marriage contracts, most divorcing couples still have the older, standard models. In most situations where notaries recommended separation as to property there is nothing provided as compensation for the fact that a spouse renounced to the partnership of acquests.

 

There is an important difference between a carefully crafted marriage contract agreed to by parties represented by independent counsel attempting to work out a fair arrangement in special circumstances such as second marriages, inherited property, etc. versus a standard Quebec marriage contract where most parties do not receive independent counsel and compensation is not even discussed much less negotiated for renouncing to the sharing of the acquests of the other spouse.

 

It is very important to get independent legal advice from a family law lawyer before signing a marriage contract.