Civil Code of Québec, C.c.Q.
| Citation: | Civil Code of Québec, C.c.Q. | |
| Information about this text: | Consolidation: Updated to 1 July 2004 | |
| Enabled Regulations: | 13 Regulations | |
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CIVIL CODE OF QUÉBEC
S.Q., 1991, c. 64.
updated to July 1, 2004
last amendment: April 22, 2004
BOOK TWO
THE FAMILY
TITLE ONE
MARRIAGE
CHAPTER I
MARRIAGE AND SOLEMNIZATION OF MARRIAGE
365.
Marriage shall be contracted openly, in the presence of two witnesses, before a competent officiant.1991, c. 64, s. 365; 2002, c. 6, s. 22.
366.
Every clerk or deputy clerk of the Superior Court designated by the Minister of Justice, every notary authorized by law to execute notarized acts and, within the territory defined in the instrument of designation, any other person designated by the Minister of Justice, including mayors, members of municipal or borough councils and municipal officers, is competent to solemnize marriage.In addition, every minister of religion authorized to solemnize marriage by the religious society to which he belongs is competent to do so, provided that he is resident in Québec, that he carries on the whole or part of his ministry in Québec, that the existence, rites and ceremonies of his confession are of a permanent nature, that he solemnizes marriages in places which conform to those rites or to the rules prescribed by the Minister of Justice and that he is authorized by the minister responsible for civil status.
Any minister of religion not resident but living temporarily in Québec may also be authorized to solemnize marriage in Québec for such time as the minister responsible for civil status determines.
In the territory defined in an agreement concluded between the Government and a Mohawk community, the persons designated by the Minister of Justice and the community are also competent to solemnize marriages.
1991, c. 64, s. 366; 1996, c. 21, s. 28; 1999, c. 53, s. 20; 2002, c. 6, s. 23; 2004, c. 5, s. 1.
367.
No minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion and to the discipline of the religious society to which he belongs.1991, c. 64, s. 367.
368.
Before the solemnization of a marriage, publication shall be effected by means of a notice posted up, for twenty days before the date fixed for the marriage, at the place where the marriage is to be solemnized.At the time of the publication or of the application for a dispensation, the spouses shall be informed of the advisability of a premarital medical examination.
1991, c. 64, s. 368.
369.
The publication sets forth the name and domicile of each of the intended spouses, and the date and place of birth of each. The correctness of these particulars is confirmed by a witness of full age.1991, c. 64, s. 369.
370.
The officiant may, for a serious reason, grant a dispensation from publication.1991, c. 64, s. 370.
371.
If a marriage is not solemnized within three months from the twentieth day after publication, the publication shall be renewed.1991, c. 64, s. 371.
372.
Any interested person may oppose the solemnization of a marriage between persons incapable of contracting it.A minor may oppose a marriage alone. He may also act alone as defendant.
1991, c. 64, s. 372.
373.
Before solemnizing a marriage, the officiant ascertains the identity of the intended spouses, compliance with the conditions for the formation of the marriage and observance of the formalities prescribed by law. More particularly, the officiant ascertains that the intended spouses are free from any previous bond of marriage or civil union and, in the case of minors, that the person having parental authority or, if applicable, the tutor has consented to the marriage.1991, c. 64, s. 373; 2002, c. 6, s. 24.
374.
In the presence of the witnesses, the officiant reads articles 392 to 396 to the intended spouses.He requests and receives, from each of the intended spouses personally, a declaration of their wish to take each other as husband and wife. He then declares them united in marriage.
1991, c. 64, s. 374.
375.
The officiant draws up the declaration of marriage and sends it without delay to the registrar of civil status.1991, c. 64, s. 375; 1999, c. 47, s. 15.
376.
Clerks and deputy clerks, notaries and persons designated by the Minister of Justice solemnize marriages according to the rules prescribed by the Minister of Justice.Clerks and deputy clerks collect the duties fixed by regulation of the Government from the intended spouses, on behalf of the Minister of Finance.
Notaries and designated persons collect the agreed fees from the intended spouses. However, mayors, other members of municipal or borough councils and municipal officers collect the duties fixed by municipal by-law from the intended spouses, on behalf of the municipality; such duties must be in keeping with the minimum and maximum amounts fixed by regulation of the Government.
1991, c. 64, s. 376; 2002, c. 6, s. 25.
377.
The minister responsible for civil status and the Minister of Justice keep the registrar of civil status informed of the authorizations, designations and revocations they give, make or take part in with respect to officiants competent to solemnize marriages, so that appropriate entries and corrections may be made in a register.For the same purposes, the secretary of the Ordre des notaires du Québec maintains, and communicates to the registrar of civil status, an updated list of the notaries who are competent to solemnize marriages, specifying the date on which each notary became so competent and, if known, the date on which the notary will cease to be so competent.
If an officiant is unable to act or dies, the religious society, the clerk of the Superior Court or the secretary of the Ordre des notaires du Québec, as the case may be, is responsible for informing the registrar of civil status so that the appropriate corrections may be made in the register.
1991, c. 64, s. 377; 1996, c. 21, s. 29; 2002, c. 6, s. 26.
CHAPTER II
PROOF OF MARRIAGE
378.
Marriage is proved by an act of marriage, except in cases where the law authorizes another mode of proof.1991, c. 64, s. 378.
379.
Possession of the status of spouses compensates for a defect of form in the act of marriage.1991, c. 64, s. 379.
CHAPTER III
NULLITY OF MARRIAGE
380.
A marriage which is not solemnized according to the prescriptions of this Title and the necessary conditions for its formation may be declared null upon the application of any interested person, although the court may decide according to the circumstances.No action lies after the lapse of three years from the solemnization, except where public order is concerned.
1991, c. 64, s. 380; 2002, c. 19, s. 15.
381.
The nullity of a marriage, for whatever reason, does not deprive the children of the advantages secured to them by law or by the marriage contract.The rights and duties of fathers and mothers towards their children are unaffected by the nullity of their marriage.
1991, c. 64, s. 381.
382.
A marriage, although declared null, produces its effects with regard to the spouses if they were in good faith.In particular, the liquidation of the patrimonial rights that are then presumed to have existed is proceeded with, unless the spouses each agree on taking back their property.
1991, c. 64, s. 382.
383.
If the spouses were in bad faith, they each take back their property.1991, c. 64, s. 383.
384.
If only one spouse was in good faith, that spouse may either take back his or her property or apply for the liquidation of the patrimonial rights resulting to him or her from the marriage.1991, c. 64, s. 384.
385.
Subject to article 386, spouses in good faith are entitled to the gifts made to them in consideration of marriage.However, the court may, when declaring a marriage null, declare the gifts to have lapsed or reduce them, or order the payment of the gifts inter vivos deferred for the period of time it fixes, taking the circumstances of the parties into account.
1991, c. 64, s. 385.
386.
The nullity of the marriage renders null the gifts inter vivos made in consideration of the marriage to a spouse in bad faith.It also renders null the gifts mortis causa made by one spouse to the other in consideration of the marriage.
1991, c. 64, s. 386.
387.
A spouse is presumed to have contracted marriage in good faith unless, when declaring the marriage null, the court declares that spouse to be in bad faith.1991, c. 64, s. 387.
388.
The court decides, as in proceedings for separation from bed and board, as to the provisional measures pending suit, the custody, maintenance and education of the children and, in declaring nullity, it decides as to the right of a spouse in good faith to support or to a compensatory allowance.1991, c. 64, s. 388.
389.
Nullity of marriage extinguishes the right which the spouses had to claim support unless, on a demand, the court, in declaring nullity, orders one of them to pay support to the other or, being unable, owing to the circumstances, to decide the question equitably, reserves the right to claim support.The right to claim support may not be reserved for a period of over two years; it is extinguished by operation of law at the expiry of that period.
1991, c. 64, s. 389.
390.
Where the court has awarded support or reserved the right to claim support, it may at any time after the marriage is annulled declare the right to support extinguished.1991, c. 64, s. 390.
CHAPTER IV
EFFECTS OF MARRIAGE
391.
In no case may spouses derogate from the provisions of this chapter, whatever their matrimonial regime.1991, c. 64, s. 391.
SECTION I
RIGHTS AND DUTIES OF SPOUSES
392.
The spouses have the same rights and obligations in marriage.They owe each other respect, fidelity, succour and assistance.
They are bound to live together.
1991, c. 64, s. 392.
393.
In marriage, both spouses retain their respective names, and exercise their respective civil rights under those names.1991, c. 64, s. 393.
394.
The spouses together take in hand the moral and material direction of the family, exercise parental authority and assume the tasks resulting therefrom.1991, c. 64, s. 394.
395.
The spouses choose the family residence together.In the absence of an express choice, the family residence is presumed to be the residence where the members of the family live while carrying on their principal activities.
1991, c. 64, s. 395.
396.
The spouses contribute towards the expenses of the marriage in proportion to their respective means.The spouses may make their respective contributions by their activities within the home.
1991, c. 64, s. 396.
397.
A spouse who enters into a contract for the current needs of the family also binds the other spouse for the whole, if they are not separated from bed and board.However, the non-contracting spouse is not liable for the debt if he or she had previously informed the other contracting party of his or her unwillingness to be bound.
1991, c. 64, s. 397.
398.
Either spouse may give the other a mandate in order to be represented in acts relating to the moral and material direction of the family.This mandate is presumed if one spouse is unable to express his or her will for any reason or if he or she is unable to do so in due time.
1991, c. 64, s. 398.
399.
Either spouse may be authorized by the court to enter alone into any act for which the consent of the other would be required, provided such consent is unobtainable for any reason, or its refusal is not justified by the interest of the family.The authorization is special and for a specified time; it may be amended or revoked.
1991, c. 64, s. 399.
400.
If the spouses disagree as to the exercise of their rights and the performance of their duties, they or either of them may apply to the court, which will decide in the interest of the family after fostering the conciliation of the parties.1991, c. 64, s. 400.
SECTION II
FAMILY RESIDENCE
401.
Neither spouse may, without the consent of the other, alienate, hypothecate or remove from the family residence the movable property serving for the use of the household.The movable property serving for the use of the household includes only the movable property destined to furnish the family residence or decorate it; decorations include pictures and other works of art, but not collections.
1991, c. 64, s. 401.
402.
A spouse having neither consented to nor ratified an act concerning any movable property serving for the use of the household may apply to have it annulled.However, an act by onerous title may not be annulled if the other contracting party was in good faith.
1991, c. 64, s. 402.
403.
Neither spouse, if the lessee of the family residence, may, without the written consent of the other, sublet it, transfer the right or terminate the lease where the lessor has been notified, by either of them, that the dwelling is used as the family residence.A spouse having neither consented to nor ratified the act may apply to have it annulled.
1991, c. 64, s. 403.
404.
Neither spouse, if the owner of an immovable with fewer than five dwellings that is used in whole or in part as the family residence, may, without the written consent of the other, alienate the immovable, charge it with a real right or lease that part of it reserved for the use of the family.A spouse having neither consented to nor ratified the act may apply to have it annulled if a declaration of family residence was previously entered against the immovable.
1991, c. 64, s. 404.
405.
Neither spouse, if the owner of an immovable with five dwellings or more that is used in whole or in part as the family residence may, without the written consent of the other, alienate the immovable or lease that part of it reserved for the use of the family.Where a declaration of family residence was previously registered against the immovable, a spouse not having consented to the deed of alienation may require to be granted a lease by the acquirer of the premises already occupied as a dwelling under the conditions governing the lease of a dwelling; on the same condition, a spouse having neither consented to nor ratified the act of lease may apply to have it annulled.
1991, c. 64, s. 405.
406.
The usufructuary, the emphyteutic lessee and the user are subject to the rules of articles 404 and 405.Neither spouse may, without the consent of the other, dispose of rights held by another title conferring use of the family residence.
1991, c. 64, s. 406.
407.
The declaration of family residence is made by both spouses or by either of them.It may also result from a declaration to that effect contained in an act intended for publication.
1991, c. 64, s. 407.
408.
A spouse not having given consent to an act for which it was required may, without prejudice to any other right, claim damages from the other spouse or from any other person having, through his fault, caused damage.1991, c. 64, s. 408.
409.
In the event of separation from bed and board, divorce or nullity of a marriage, the court may, upon the application of either spouse, award to the spouse of the lessee the lease of the family residence.The award binds the lessor upon being served on him and relieves the original lessee of the rights and obligations arising out of the lease from that time forward.
1991, c. 64, s. 409.
410.
In the event of separation from bed and board, or the dissolution or nullity of a marriage, the court may award, to either spouse or to the surviving spouse, the ownership or use of the movable property of the other which serves for the use of the household.It may also award the right of use of the family residence to the spouse to whom it awards custody of a child.
The user is exempted from furnishing security and from making an inventory of the property unless the court decides otherwise.
1991, c. 64, s. 410.
411.
The award of the right of use or ownership is effected, failing agreement between the parties, on the conditions determined by the court and, in particular, on condition of payment of any balance, in cash or by instalments.When the balance is payable by instalments, the court fixes the terms and conditions of guarantee and payment.
1991, c. 64, s. 411.
412.
Judicial award of a right of ownership is subject to the provisions relating to sale.1991, c. 64, s. 412.
413.
A judgment awarding a right of use or ownership is equivalent to title and has the effects thereof.1991, c. 64, s. 413.
SECTION III
FAMILY PATRIMONY
§1. — Establishment of patrimony
414.
Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.1991, c. 64, s. 414.
415.
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 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 Act respecting Supplemental Pension Plans or that would be governed thereby if it 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.
1991, c. 64, s. 415; 2002, c. 19, s. 3.
§2. — Partition of patrimony
416.
In the event of separation from bed and board, or the dissolution or nullity of a marriage, the value of the family patrimony of the spouses, after deducting the debts contracted for the acquisition, improvement, maintenance or preservation of the property composing it, is equally divided between the spouses or between the surviving spouse and the heirs, as the case may be.Where partition is effected upon separation from bed and board, no new partition is effected upon the subsequent dissolution or nullity of the marriage unless the spouses had voluntarily resumed living together; where a new partition is effected, the date when the spouses resumed living together is substituted for the date of the marriage for the purposes of this section.
1991, c. 64, s. 416.
417.
The net value of the family patrimony is determined according to the value of the property composing the patrimony and the debts contracted for the acquisition, improvement, maintenance or preservation of the property composing it on the date of death of the spouse or on the date of the institution of the action in which separation from bed and board, divorce or nullity of the marriage, as the case may be, is decided; the property is valued at its market value.The court may, however, upon the application of one or the other of the spouses or of their successors, decide that the net value of the family patrimony will be established according to the value of such property and such debts on the date when the spouses ceased living together.
1991, c. 64, s. 417.
418.
Once the net value of the family patrimony has been established, a deduction is made from it of the net value, at the time of the marriage, of the property then owned by one of the spouses that is included in the family patrimony; similarly, a deduction is made from it of the net value of a contribution made by one of the spouses during the marriage for the acquisition or improvement of property included in the family patrimony, where the contribution was made out of property devolved by succession or gift, or its reinvestment.A further deduction from the net value is made, in the first case, of the increase in value acquired by the property during the marriage, proportionately to the ratio existing at the time of the marriage between the net value and the gross value of the property, and, in the second case, of the increase in value acquired since the contribution, proportionately to the ratio existing at the time of the contribution between the value of the contribution and the gross value of the property.
Reinvestment during the marriage of property included in the family patrimony that was owned at the time of the marriage gives rise to the same deductions, adapted as required.
1991, c. 64, s. 418.
419.
Partition of the family patrimony is effected by giving in payment or by payment in money.If partition is effected by giving in payment, the spouses may agree to transfer ownership of other property than that composing the family patrimony.
1991, c. 64, s. 419.
420.
The court may, at the time of partition, award certain property to one of the spouses and also, where it is necessary to avoid damage, order the debtor spouse to perform his or her obligation by way of instalments spread over a period of not over ten years.It may also order any other measure it considers appropriate to ensure that the judgment is properly executed, and, in particular, order that security be granted to one of the parties to guarantee performance of the obligations of the debtor spouse.
1991, c. 64, s. 420.
421.
Where property included in the family patrimony was alienated or misappropriated in the year preceding the death of one of the spouses or the institution of proceedings for separation from bed and board, divorce or annulment of marriage and was not replaced, the court may order that a compensatory payment be made to the spouse who would have benefited from the inclusion of that property in the family patrimony.The same rule applies where the property was alienated over one year before the death of one of the spouses or the institution of proceedings and the alienation was made for the purpose of decreasing the share of the spouse who would have benefited from the inclusion of that property in the family patrimony.
1991, c. 64, s. 421.
422.
The court may, on an application, make an exception to the rule of partition into equal shares, and decide that there will be no partition of earnings registered pursuant to the Act respecting the Québec Pension Plan or to similar plans where it would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them.1991, c. 64, s. 422.
423.
The spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony.One spouse may, however, from the death of the other spouse or from the judgment of divorce, separation from bed and board or nullity of marriage, renounce such rights, in whole or in part, by notarial act en minute; that spouse may also renounce them by a judicial declaration which is recorded, in the course of proceedings for divorce, separation from bed and board or nullity of marriage.
Renunciation shall be entered in the register of personal and movable real rights. Failing entry within a period of one year from the time when the right to partition arose, the renouncing spouse is deemed to have accepted.
1991, c. 64, s. 423; 1992, c. 57, s. 716.
424.
Renunciation by one of the spouses, by notarial act, of partition of the family patrimony may be annulled by reason of lesion or any other cause of nullity of contracts.1991, c. 64, s. 424.
425.
The partition of the earnings registered in the name of each spouse pursuant to the Act respecting the Québec Pension Plan or to a similar plan is effected by the body responsible for administering the plan, in accordance with that Act or the Act applicable to that plan, unless the latter Act provides no rules for partition.1991, c. 64, s. 425.
426.
The partition of the accrued benefits of one of the spouses under a pension plan governed or established by an Act is effected according to the rules of valuation and devolution contained in that Act or, where there are no such rules, according to the rules determined by the court seized of the application.In no case, however, may the partition of such benefits deprive the original holder of such benefits of over one-half of the total value of the benefits accrued to him before or during the marriage, or confer more benefits on the beneficiary of the right to partition than the original holder of these benefits has under his plan.
Between the spouses or for their benefit, and notwithstanding any provision to the contrary, such benefits and benefits accrued under any other pension plan are transferable and seizable for partition of the family patrimony.
1991, c. 64, s. 426; 2002, c. 19, s. 4.
SECTION IV
COMPENSATORY ALLOWANCE
427.
The court, in declaring separation from bed and board, divorce or nullity of marriage, may order either spouse to pay to the other, as compensation for the latter’s contribution, in property or services, to the enrichment of the patrimony of the former, an allowance payable in cash or by instalments, taking into account, in particular, the advantages of the matrimonial regime and of the marriage contract. The same rule applies in case of death; in such a case, the advantages of the succession to the surviving spouse are also taken into account.Where the right to the compensatory allowance is founded on the regular cooperation of the spouse in an enterprise, whether the enterprise deals in property or in services and whether or not it is a commercial enterprise, it may be applied for from the time the cooperation ends, if this results from the alienation, dissolution or voluntary or forced liquidation of the enterprise.
1991, c. 64, s. 427.
428.
The cooperating spouse may adduce any evidence to prove his or her contribution to the enrichment of the patrimony of the other spouse.1991, c. 64, s. 428.
429.
Where a compensatory allowance becomes payable, the court, failing agreement between the parties, fixes the amount thereof. It may also, where applicable, fix the terms and conditions of payment and order that the allowance be paid in cash or by instalments or that it be paid by the awarding of rights in certain property.If the court awards a right in the family residence, a right in the movable property serving for the use of the household or retirement benefits accrued under a retirement plan to one of the spouses or to the surviving spouse, the provisions of Sections II and III are applicable.
1991, c. 64, s. 429.
430.
One of the spouses may, during the marriage, agree with the other spouse to make partial payment of the compensatory allowance. The payment received shall be deducted when the time comes to fix the value of the compensatory allowance.1991, c. 64, s. 430.
CHAPTER V
MATRIMONIAL REGIMES
SECTION I
GENERAL PROVISIONS
§1. — Choice of matrimonial regime
431.
Any kind of stipulation may be made in a marriage contract, subject to the imperative provisions of law and public order.1991, c. 64, s. 431.
432.
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.1991, c. 64, s. 432.
433.
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.
1991, c. 64, s. 433.
434.
A minor authorized to marry may, before the marriage is solemnized, make all such matrimonial agreements as the marriage contract admits of, provided he is authorized to that effect by the court.The person having parental authority or, as the case may be, the tutor shall be summoned to give his opinion.
The minor may apply for the authorization alone.
1991, c. 64, s. 434.
435.
Agreements not authorized by the court may be impugned only by the minor or by the persons who had to be summoned to give their opinions; no such agreement may be impugned if one year has elapsed since the marriage was solemnized.1991, c. 64, s. 435.
436.
No person of full age under tutorship or provided with an adviser may make matrimonial agreements without the assistance of his tutor or adviser; the tutor shall be authorized for this purpose by the court upon the advice of the tutorship council.No agreement made in violation of this article may be impugned except by the person of full age himself, his tutor or his adviser, as the case may be, nor except in the year immediately following the solemnization of the marriage or the day of the act changing the matrimonial agreements.
1991, c. 64, s. 436.
437.
Intended spouses may change their matrimonial agreements before the solemnization of the marriage, in the presence and with the consent of all those who were parties to the marriage contract, provided the changes themselves are made by marriage contract.1991, c. 64, s. 437.
438.
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 sustains damage 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.
1991, c. 64, s. 438.
439.
Children to be born are represented by the spouses for the modification or cancellation, before or during the marriage, of gifts made to them by the marriage contract.1991, c. 64, s. 439.
440.
Marriage contracts shall be established by a notarial act en minute, on pain of absolute nullity.1991, c. 64, s. 440.
441.
The notary receiving 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 original and on any copy he may make of it, indicating the date of the contract, the name of the notary and the number of his minute.1991, c. 64, s. 441.
442.
A notice of every marriage contract shall be entered in the register of personal and movable real rights at the requisition of the receiving notary.1991, c. 64, s. 442.
§2. — Exercise of rights and powers arising out of the matrimonial regime
443.
Either spouse may give a mandate to the other in order to be represented in the exercise of rights and powers granted by the matrimonial regime.1991, c. 64, s. 443.
444.
Where an expression of will cannot be given or cannot be given in due time by one spouse, the court may confer a mandate upon the other spouse to administer the property of that spouse or property administered by that spouse under the matrimonial regime.The court fixes the terms and conditions of exercise of the powers conferred.
1991, c. 64, s. 444.
445.
The court may declare the judicial mandate withdrawn once it is established that it is no longer necessary.The mandate ceases by operation of law upon the other spouse’s being provided with a tutor or curator.
1991, c. 64, s. 445.
446.
Either spouse, having administered the property of the other, is accountable even for the fruits and revenues consumed before receiving a demand to render an account.1991, c. 64, s. 446.
447.
If one spouse exceeds the powers granted by the matrimonial regime and the other has not ratified the act, the latter may apply to have it declared null.As regards movable property, however, each spouse is deemed, in respect of third parties in good faith, to have power to enter alone into acts by onerous title for which the consent of the other spouse would be necessary.
1991, c. 64, s. 447.
SECTION II
PARTNERSHIP OF ACQUESTS
§1. — Composition of the partnership of acquests
448.
The property that the spouses possess individually when the regime comes into effect or that they subsequently acquire constitutes acquests or private property according to the rules that follow.1991, c. 64, s. 448.
449.
The acquests of each spouse include all property not declared to be private property by law, and, in particular,(1) the proceeds of that spouse’s work during the regime;
(2) the fruits and income due or collected from all that spouse’s private property or acquests during the regime.
1991, c. 64, s. 449.
450.
The private property of each spouse consists of(1) property owned or possessed by that spouse when the regime comes into effect;
(2) property which devolves to that spouse during the regime by succession or gift, and the fruits and income derived from it if the testator or donor has so provided;
(3) property acquired by that spouse to replace private property and any insurance indemnity relating thereto;
(4) the rights or benefits devolved to that spouse as a subrogated holder or as a specified beneficiary under a contract or plan of retirement, other annuity or insurance of persons;
(5) that spouse’s clothing and personal papers, wedding ring, decorations and diplomas;
(6) the instruments required for that spouse’s occupation, saving compensation where applicable.
1991, c. 64, s. 450.
451.
Property acquired with private property and acquests is also private property, subject to compensation, if the value of the private property used is greater than one-half of the total cost of acquisition of the property. Otherwise, it is an acquest subject to compensation.The same rule applies to life insurance, retirement pensions and other annuities. The total cost is the aggregate of the premiums or sums paid, except in term insurance where it is the amount of the latest premium.
1991, c. 64, s. 451.
452.
Where, during the regime, a spouse who is already privately an undivided co-owner of a property acquires another part of it, this acquired part is also that spouse’s private property, saving compensation where applicable.However, if the value of the acquests used to acquire that part is equal to or greater than one-half of the total value of the property of which the spouse has become the owner, this property becomes an acquest, subject to compensation.
1991, c. 64, s. 452.
453.
The right of a spouse to support, to a disability allowance or to any other benefit of the same nature remains the private property of that spouse; however, all pecuniary benefits derived from these are acquests, if they fall due or are collected during the regime or are payable to that spouse’s heirs and successors at death.No compensation is due by reason of any amount or premium paid with the acquests or the private property to acquire the support, allowance or other benefits.
1991, c. 64, s. 453.
454.
The right to claim damages and the compensation received for moral or corporal injury are also the private property of the spouse.The same rule applies to the right and the compensation arising from an insurance contract or any other indemnification scheme, but no compensation is payable in respect of the premiums or amounts paid with the acquests.
1991, c. 64, s. 454.
455.
Property acquired as an accessory of or an annex to private property, and any construction, work or plantation on or in an immovable which is private property, remain private, saving compensation, if need be.However, if the accessory or annex was acquired, or the construction, work or plantation made, from acquests, and if its value is equal to or greater than that of the private property, the whole becomes an acquest subject to compensation.
1991, c. 64, s. 455.
456.
Securities acquired by the effect of a declaration of dividends on securities that are the private property of either spouse remain that spouse’s private property, saving compensation.Securities acquired by the effect of the exercise of a subscription right, a pre-emptive right or any other similar right conferred on either spouse by securities that are that spouse’s private property likewise remain so, saving compensation, if need be.
Redemption premiums and prepaid premiums on securities that are the private property of either spouse remain that spouse’s private property without compensation.
1991, c. 64, s. 456.
457.
Income derived from the operation of an enterprise that is the private property of either spouse remains that spouse’s private property, subject to compensation, if it is reinvested in the enterprise.No compensation is due, however, if the investment was necessary in order to maintain the income of the enterprise.
1991, c. 64, s. 457.
458.
Intellectual and industrial property rights are private property, but all fruits and income arising from them and collected or fallen due during the regime are acquests.1991, c. 64, s. 458.
459.
All property is presumed to constitute an acquest, both between the spouses and with respect to third persons, unless it is established that it is private property.1991, c. 64, s. 459.
460.
Any property that a spouse is unable to prove to be an exclusively private property or acquest is presumed to be held by both spouses in undivided co-ownership, one-half by each.1991, c. 64, s. 460.
§2. — Administration of property and liability for debts
461.
Each spouse has the administration, enjoyment and free disposal of his or her private property and acquests.1991, c. 64, s. 461.
462.
Neither spouse may, however, without the consent of the other, dispose of acquests inter vivos by gratuitous title, with the exception of property of small value or customary presents.A spouse may be authorized by the court to enter into the act alone, however, if consent cannot be obtained for any reason or if refusal is not justified in the interest of the family.
1991, c. 64, s. 462.
463.
The restriction to the right to dispose of acquests does not limit the right of either spouse to designate a third person as a beneficiary or subrogated holder of an insurance of persons, a retirement pension or any other annuity, subject to the application of the rules respecting the family patrimony.No compensation is due by reason of the sums or premiums paid with the acquests if the designation is in favour of the other spouse or of the children of either spouse.
1991, c. 64, s. 463.
464.
The spouses, individually, are liable on both their private property and their acquests for all debts incurred by them before or during the marriage.While the regime lasts, neither spouse is liable for the debts incurred by the other, subject to articles 397 and 398.
1991, c. 64, s. 464.
§3. — Dissolution and liquidation of the regime
465.
The regime of partnership of acquests is dissolved by(1) the death of one of the spouses;
(2) a conventional change of regime during the marriage;
(3) a judgment of divorce, separation from bed and board, or separation as to property;
(4) the absence of one of the spouses in the cases provided for by law;
(5) the nullity of the marriage if, nevertheless, the marriage produces effects.
The effects of the dissolution are produced immediately, except in the cases of subparagraphs 3 and 5, where they are retroactive, between the spouses, to the day of the application.
1991, c. 64, s. 465.
466.
In any case of dissolution of a regime, the court may, upon the application of either spouse or of the latter’s successors, decide that, in the mutual relations of the spouses, the effects of the dissolution are retroactive to the date when they ceased to live together.1991, c. 64, s. 466.
467.
Each spouse retains his or her private property after the regime is dissolved.One spouse may accept or renounce the partition of the other spouse’s acquests, notwithstanding any agreement to the contrary.
1991, c. 64, s. 467.
468.
Acceptance may be either express or tacit.No spouse who has interfered in the management of the acquests of the other spouse after the regime is dissolved may receive the share of the acquests of the other spouse to which he or she is entitled unless the other spouse has accepted the partition of the acquests of the spouse who interfered.
Acts of simple administration do not constitute interference.
1991, c. 64, s. 468.
469.
Renunciation shall be made by notarial act en minute or by a judicial declaration which is recorded.Renunciation shall be entered in the register of personal and movable real rights; failing entry within one year from the date of the dissolution, the spouse is deemed to have accepted.
1991, c. 64, s. 469.
470.
If either spouse renounces partition, the share of the other’s acquests to which he or she would have been entitled remains vested in the other.However, the creditors of the spouse who renounces partition to the prejudice of their rights may apply to the court for a declaration that the renunciation may not be set up against them, and accept the share of the acquests of their debtor’s spouse in his or her place and stead.
In that case, their acceptance has effect only in their favour and only to the extent of the amount of their claims; it is not valid in favour of the renouncing spouse.
1991, c. 64, s. 470.
471.
A spouse who has misappropriated or concealed acquests, wasted acquests or administered them in bad faith forfeits his or her share of the acquests of the other spouse.1991, c. 64, s. 471.
472.
Acceptance and renunciation are irrevocable. Renunciation may be annulled, however, by reason of lesion or any other cause of nullity of contracts.1991, c. 64, s. 472.
473.
When the regime is dissolved by death and the surviving spouse has accepted the partition of the acquests of the deceased spouse, the heirs of the deceased spouse may accept or renounce the partition of the surviving spouse’s acquests, and, excepting preferential awards which only the surviving spouse is entitled to receive, the provisions on the dissolution and liquidation of the regime apply to them.If one of the heirs accepts partition and the others renounce it, the heir who accepts may not take more than the portion of the acquests that he would have had if all had accepted.
Renunciation by the surviving spouse may be set up against the creditors of the deceased spouse.
1991, c. 64, s. 473.
474.
When a spouse dies while still entitled to renounce partition, the heirs have a further period of one year from the date of death in which to have their renunciation entered.1991, c. 64, s. 474.
475.
When the partition of a spouse’s acquests is accepted, the property of the patrimony of that spouse is first divided into two masses, one comprising the private property and the other the acquests.A statement is then prepared of the compensation owed by the mass of private property to the mass of the spouse’s acquests, and vice versa.
The compensation is equal to the enrichment enjoyed by one mass to the detriment of the other.
1991, c. 64, s. 475.
476.
Property susceptible of compensation is estimated according to its condition at the time of dissolution of the regime and to its value at the time of liquidation.The enrichment is valued as on the day the regime is dissolved; however, when the property acquired or improved was alienated during the regime, the enrichment is valued as on the day of the alienation.
1991, c. 64, s. 476.
477.
No compensation is due by reason of expenses necessary or useful for the maintenance or preservation of the property.1991, c. 64, s. 477.
478.
Unpaid debts incurred for the benefit of the private property give rise to compensation as if they had already been paid with the acquests.1991, c. 64, s. 478.
479.
Payment with the acquests of any fine imposed by law gives rise to compensation.1991, c. 64, s. 479.
480.
If the statement shows a balance in favour of the mass of acquests, the spouse who holds the patrimony makes a return to that mass for partition, either by taking less, or in value, or with his or her private property.If the statement shows a balance in favour of the mass of private property, the spouse removes assets from his or her acquests up to the amount owed.
1991, c. 64, s. 480.
481.
Once the settlement of compensation has been effected, the net value of the mass of acquests is established and evenly divided between the spouses. The spouse who holds the patrimony may pay the portion due to the other spouse by paying him or her in money or by giving in payment.1991, c. 64, s. 481.
482.
If the dissolution of the regime results from the death or absence of the spouse who holds the patrimony, the other spouse may require to be given in payment, on condition of payment of any balance, in cash or by instalments, the family residence and the movable property serving for the use of the household or any other family property to the extent that they were acquests or property forming part of the family patrimony.If there is no agreement on the payment of the balance, the court fixes the terms and conditions of guarantee and payment.
1991, c. 64, s. 482.
483.
If the parties do not agree on the valuation of the property, it is valued by experts designated by the parties or, failing them, the court.1991, c. 64, s. 483.
484.
Dissolution of the regime does not prejudice the rights, before the partition, of former creditors against the whole of their debtor’s patrimony.After the partition, former creditors may only pursue payment of their claims against the debtor spouse. However, if the claims were not taken into account when the partition was made, they may, after discussion of the property of their debtor, pursue the other spouse. Each spouse then preserves a remedy against the other for the amounts he or she would have been entitled to if the claims had been paid before the partition.
In no case may the spouse of the debtor spouse be called upon to pay a greater amount than the portion of the acquests he or she received from the latter.
1991, c. 64, s. 484.
SECTION III
SEPARATION AS TO PROPERTY
§1. — Conventional separation as to property
485.
The regime of conventional separation as to property is established by a simple declaration to this effect in the marriage contract.1991, c. 64, s. 485.
486.
Under the regime of separation as to property, the spouses, individually, have the administration, enjoyment and free disposal of all their property.1991, c. 64, s. 486.
487.
Property over which the spouses are unable to establish their exclusive right of ownership is presumed to be held by both in undivided co-ownership, one-half by each.1991, c. 64, s. 487.
§2. — Judicial separation as to property
488.
Either spouse may obtain separation as to property when the application of the rules of the matrimonial regime appears to be contrary to the interests of that spouse or of the family.1991, c. 64, s. 488.
489.
Separation as to property judicially obtained entails dissolution of the matrimonial regime and puts the spouses in the situation of those who are conventionally separate as to property.Between spouses, the effects of the separation are retroactive to the day of the application unless the court makes them retroactive to the date on which the spouses ceased to live together.
1991, c. 64, s. 489.
490.
Creditors of the spouses may not apply for separation as to property, but may intervene in the action.They may also institute proceedings against separation as to property pronounced or executed in fraud of their rights.
1991, c. 64, s. 490.
491.
Dissolution of the matrimonial regime effected by separation as to property does not give rise to the rights of survivorship, unless otherwise stipulated in the marriage contract.1991, c. 64, s. 491.
SECTION IV
COMMUNITY REGIMES
492.
Where the spouses elect for a community matrimonial regime and it is necessary to supplement the provisions of the agreement, reference shall be made to the rules respecting partnership of acquests, adapted as required.Spouses married under the former regime of legal community may invoke the rules of dissolution and liquidation of the regime of partnership of acquests where these are not inconsistent with their matrimonial regime.
1991, c. 64, s. 492.
CHAPTER VI
SEPARATION FROM BED AND BOARD
SECTION I
GROUNDS FOR SEPARATION FROM BED AND BOARD
493.
Separation from bed and board is granted when the will to live together is gravely undermined.1991, c. 64, s. 493.
494.
The will to live together is gravely undermined particularly(1) where proof of an accumulation of facts that make further living together hardly tolerable is adduced by the spouses or either of them;
(2) where, at the time of the application, the spouses are living apart;
(3) where either spouse has seriously failed to perform an obligation resulting from the marriage; however, the spouse may not invoke his or her own failure.
1991, c. 64, s. 494.
495.
If the spouses submit to the approval of the court a draft agreement settling the consequences of their separation from bed and board, they may apply for separation without disclosing the ground.The court then grants the separation if it is satisfied that the spouses truly consent and that the agreement sufficiently preserves the interests of each of them and of the children.
1991, c. 64, s. 495.
SECTION II
PROCEEDINGS FOR SEPARATION FROM BED AND BOARD
§1. — General provision
496.
It comes within the role of the court to counsel and to foster the conciliation of the spouses, and to see to the interests of the children and the respect of their rights, at all stages of the proceedings for separation from bed and board.1991, c. 64, s. 496.
§2. — Application and proof
497.
An application for separation from bed and board may be presented by both spouses or either of them.1991, c. 64, s. 497.
498.
Proof that further living together is hardly tolerable for the spouses may result from the admission of one party but the court may require additional evidence.1991, c. 64, s. 498.
§3. — Provisional measures
499.
An application for separation from bed and board releases the spouses from the obligation to live together.1991, c. 64, s. 499.
500.
The court may order either spouse to leave the family residence during the proceedings.It may also authorize either spouse to retain temporarily certain movable property which until that time had served for common use.
1991, c. 64, s. 500.
501.
The court may decide as to the custody and education of the children.It fixes the contribution payable by each spouse to the maintenance of the children during the proceedings.
1991, c. 64, s. 501.
502.
The court may order either spouse to pay support to the other, and a provisional sum to cover the costs of the proceedings.1991, c. 64, s. 502.
503.
Provisional measures may be reviewed whenever warranted by any new fact.1991, c. 64, s. 503.
§4. — Adjournments and reconciliation
504.
The court may adjourn the hearing of the application for separation from bed and board if it considers that adjournment can foster the reconciliation of the spouses or avoid serious prejudice to either spouse or to any of their children.The court may also adjourn the hearing if it considers that the spouses are able to settle the consequences of their separation from bed and board and to make agreements in that respect which the court will be able to take into account.
1991, c. 64, s. 504.
505.
Reconciliation between the spouses occurring after the application is presented terminates the proceedings.Either spouse may nevertheless present a new application on any ground arising after the reconciliation and, in that case, may invoke the previous grounds in support of the application.
1991, c. 64, s. 505.
506.
Resumption of cohabitation for less than ninety days does not by itself create a presumption of reconciliation.1991, c. 64, s. 506.
SECTION III
EFFECTS BETWEEN SPOUSES OF SEPARATION FROM BED AND BOARD
507.
Separation from bed and board releases the spouses from the obligation to live together; it does not break the bond of marriage.1991, c. 64, s. 507.
508.
Separation from bed and board carries with it separation as to property, where applicable.Between spouses, the effects of separation as to property are produced from the day of the application for separation from bed and board, unless the court makes them retroactive to the date on which the spouses ceased to live together.
1991, c. 64, s. 508.
509.
Separation from bed and board does not immediately give rise to rights of survivorship, unless otherwise stipulated in the marriage contract.1991, c. 64, s. 509.
510.
Separation from bed and board does not entail the lapse of gifts made to the spouses in consideration of marriage.However, the court, when granting a separation, may declare the gifts lapsed or reduce them, or order the payment of gifts inter vivos deferred for such time as it may fix, taking the circumstances of the parties into account.
1991, c. 64, s. 510.
511.
The court, when granting a separation from bed and board or subsequently, may order either spouse to pay support to the other.1991, c. 64, s. 511.
512.
In any decision relating to the effects of separation from bed and board in respect of the spouses, the court takes their circumstances into account; it considers, among other things, their needs and means, the agreements made between them, their age and state of health, their family obligations, their chances of finding employment, their existing and foreseeable patrimonial situation, evaluating both their capital and their income, and, as the case may be, the time needed by the creditor of support to acquire sufficient autonomy.1991, c. 64, s. 512.
SECTION IV
EFFECTS OF SEPARATION FROM BED AND BOARD ON CHILDREN
513.
Separation from bed and board does not deprive the children of the advantages secured to them by law or by the marriage contract.The rights and duties of fathers and mothers towards their children are unaffected by separation from bed and board.
1991, c. 64, s. 513.
514.
The court, in granting separation from bed and board or subsequently, decides as to the custody, maintenance and education of the children, in their interest and in the respect of their rights, taking into account the agreements made between the spouses, where such is the case.1991, c. 64, s. 514.
SECTION V
END OF SEPARATION FROM BED AND BOARD
515.
Separation from bed and board is terminated upon the spouses’ voluntarily resuming living together.Separation as to property remains unless the spouses elect another matrimonial regime by marriage contract.
1991, c. 64, s. 515.
CHAPTER VII
DISSOLUTION OF MARRIAGE
SECTION I
GENERAL PROVISIONS
516.
Marriage is dissolved by the death of either spouse or by divorce.1991, c. 64, s. 516.
517.
Divorce is granted in accordance with the Divorce Act of Canada. The rules governing proceedings for separation from bed and board enacted by this Code and the rules of the Code of Civil Procedure apply to such applications to the extent that they are consistent with the Divorce Act of Canada.1991, c. 64, s. 517.
SECTION II
EFFECTS OF DIVORCE
518.
Divorce carries with it the dissolution of the matrimonial regime.The effects of the dissolution of the regime are produced between the spouses from the day the application is presented, unless the court makes them retroactive to the date on which the spouses ceased to live together.
1991, c. 64, s. 518.
519.
Divorce entails the lapse of gifts mortis causa made by one spouse to the other in consideration of marriage.1991, c. 64, s. 519.
520.
Divorce does not entail the lapse of other gifts mortis causa or gifts inter vivos made to the spouses in consideration of marriage.The court may, however, when granting a divorce, declare such gifts lapsed or reduce them, or order the payment of gifts inter vivos deferred for such time as it may fix.
1991, c. 64, s. 520.
521.
Divorce has the same effects in respect of children as separation from bed and board.1991, c. 64, s. 521.
TITLE ONE.1
CIVIL UNION
CHAPTER I
FORMATION OF CIVIL UNION
521.1.
A civil union is a commitment by two persons eighteen years of age or over who express their free and enlightened consent to live together and to uphold the rights and obligations that derive from that status.A civil union may only be contracted between persons who are free from any previous bond of marriage or civil union and who in relation to each other are neither an ascendant or a descendant, nor a brother or a sister.
2002, c. 6, s. 27.
521.2.
A civil union must be contracted openly before an officiant competent to solemnize marriages and in the presence of two witnesses.No minister of religion may be compelled to solemnize a civil union to which there is an impediment according to the minister’s religion and the discipline of the religious society to which he or she belongs.
2002, c. 6, s. 27.
521.3.
Before proceeding with a civil union, the officiant ascertains the identity of the intended spouses as well as compliance with the conditions for the formation of a civil union and observance of the formalities prescribed by law.The solemnization of a civil union is subject to the same rules, with the necessary modifications, as are applicable to the solemnization of a marriage, including the rules relating to prior publication.
2002, c. 6, s. 27.
521.4.
Any interested person may oppose a civil union between persons incapable of contracting a civil union.A minor may act alone to oppose a civil union.
2002, c. 6, s. 27.
521.5.
A civil union is proved by an act of civil union, except where another mode of proof is authorized by law.Possession of the status of civil union spouses compensates for a defect of form in the act of civil union.
2002, c. 6, s. 27.
CHAPTER II
CIVIL EFFECTS OF CIVIL UNION
521.6.
The spouses in a civil union have the same rights and obligations.They owe each other respect, fidelity, succour and assistance.
They are bound to live together.
The effects of the civil union as regards the direction of the family, the exercise of parental authority, contribution towards expenses, the family residence, the family patrimony and the compensatory allowance are the same as the effects of marriage, with the necessary modifications.
Whatever their civil union regime, the spouses may not derogate from the provisions of this article.
2002, c. 6, s. 27.
521.7.
A civil union creates a family connection between each spouse and the relatives of his or her spouse.2002, c. 6, s. 27.
521.8.
A civil union regime may be created by and any kind of stipulation may be made in a civil union contract, subject to the imperative provisions of law and public order.Spouses who, before the solemnization of their civil union, have not so fixed their civil union regime are subject to the regime of partnership of acquests.
Civil union regimes, whether legal or conventional, and civil union contracts are subject to the same rules as are applicable to matrimonial regimes and marriage contracts, with the necessary modifications.
2002, c. 6, s. 27.
521.9.
If spouses cannot agree as to the exercise of their rights and the performance of their duties, they or either of them may apply to the court, which will decide in the best interests of the family after fostering conciliation of the parties.2002, c. 6, s. 27.
CHAPTER III
NULLITY OF CIVIL UNION
521.10.
A civil union which is not contracted in accordance with the prescriptions of this Title may be declared null upon the application of any interested person, although the court may decide according to the circumstances.No action lies after the lapse of three years from the solemnization, except where public order is concerned.
2002, c. 6, s. 27.
521.11.
The nullity of a civil union entails the same effects as the nullity of a marriage.2002, c. 6, s. 27.
CHAPTER IV
dissolution of civil union
521.12.
A civil union is dissolved by the death of either spouse. It is also dissolved by a court judgment or by a notarized joint declaration where the spouses’ will to live together is irretrievably undermined.2002, c. 6, s. 27.
521.13.
The spouses may consent, by way of a joint declaration, to the dissolution of the civil union provided they settle all the consequences of the dissolution in an agreement.The declaration and the agreement must be executed before a notary and recorded in notarial acts en minute.
The notary may not execute the declaration before the agreement is recorded in a notarized transaction contract. The notary must inform the spouses beforehand of the consequences of the dissolution and make sure that they truly consent to the dissolution and that the agreement is not contrary to imperative provisions of law or public order. If appropriate, the notary may provide information to the spouses on any available conciliation services.
2002, c. 6, s. 27.
521.14.
The transaction contract specifies the date on which the net value of the family patrimony is established. The date may not be earlier than the date of the joint procedure for the dissolution of the civil union or the date on which the spouses ceased living together, or later than the date of the execution of the contract before a notary.2002, c. 6, s. 27.
521.15.
The joint declaration dissolving a civil union states the names and domicile of the spouses, their places and dates of birth and the place and date of solemnization of the union ; it also indicates the places and dates of execution of the transaction contract and of the declaration as well as the minute number given to each of those acts.2002, c. 6, s. 27.
521.16.
From the date of their execution before a notary and without further formality, the joint declaration dissolving the civil union and the transaction contract have the effects of a judgment dissolving a civil union.In addition to being notified to the registrar of civil status, the notarized declaration must be sent to the depositary of the original civil union contract and to the depositary of any contract modifying the civil union regime established by the original contract. The depositary is bound to make a reference to the joint declaration of dissolution on the original of the contract and on any copy issued, specifying the date of the declaration, the minute number and the name and address of the notary who executed the declaration. The notarized declaration and transaction must also be sent to the Régie des rentes du Québec.
A notice of the notarized declaration must be entered in the register of personal and movable real rights on the application of the executing notary.
2002, c. 6, s. 27.
521.17.
In the absence of a joint declaration dissolving the civil union executed before a notary or where the interests of the common children of the spouses are at stake, the dissolution of the union must be pronounced by the court.The court must ascertain that the spouses’ will to live together is irretrievably undermined, foster conciliation and see to the interests of the children and the protection of their rights. During the proceeding, the court may determine provisional measures, as in the case of separation from bed and board.
Upon or after pronouncing the dissolution, the court may order one of the spouses to pay support to the other, decide as to the custody, maintenance and education of the children, in their best interests and with due regard for their rights, and in keeping with any agreements made between the spouses.
2002, c. 6, s. 27.
521.18.
The dissolution of a civil union does not deprive the children of the advantages secured to them by law or by the civil union contract.The rights and obligations of parents towards their children are unaffected by the dissolution of the union.
2002, c. 6, s. 27.
521.19.
The dissolution of a civil union entails the dissolution of the civil union regime. Between the spouses, the effects of the dissolution of the regime are retroactive to the day of the death, the day of execution of the joint declaration of dissolution before a notary or, if the spouses so stipulated in the notarized transaction, the day on which the net value of the family patrimony is established. If the dissolution is pronounced by the court, its effects are retroactive to the day of the application to the court, unless the court makes them retroactive to the day on which the spouses ceased living together.Dissolution, otherwise than by death, entails the lapse of gifts mortis causa made by one spouse to the other in consideration of the civil union. It does not entail the lapse of other gifts mortis causa or of gifts inter vivos between the spouses in consideration of the union, except that the court may, upon pronouncing the dissolution, declare such gifts lapsed or reduce them, or order the payment of gifts inter vivos deferred for such time as it may fix.
2002, c. 6, s. 27.
TITLE TWO
FILIATION
GENERAL PROVISION
522.
1991, c. 64, s. 522.
CHAPTER I
FILIATION BY BLOOD
SECTION I
PROOF OF FILIATION
§1. — Title and possession of status
523.
Paternal filiation and maternal filiation are proved by the act of birth, regardless of the circumstances of the child’s birth.In the absence of an act of birth, uninterrupted possession of status is sufficient.
1991, c. 64, s. 523.
524.
Uninterrupted possession of status is established by an adequate combination of facts which indicate the relationship of filiation between the child and the persons of whom he is said to be born.1991, c. 64, s. 524.
§2. — Presumption of paternity
525.
If a child is born during a marriage or a civil union between persons of opposite sex, or within three hundred days after its dissolution or annulment, the spouse of the child’s mother is presumed to be the father.The presumption of paternity is rebutted if the child is born more than three hundred days after the judgment ordering separation from bed and board of married spouses, unless the spouses have voluntarily resumed living together before the birth.
The presumption is also rebutted in respect of the former spouse if the child born is within three hundred days of the dissolution or annulment of the marriage or civil union, but after a subsequent marriage or civil union of the child’s mother.
1991, c. 64, s. 525; 2002, c. 6, s. 28.
§3. — Voluntary acknowledgement
526.
If maternity or paternity cannot be determined by applying the preceding articles, the filiation of a child may also be established by voluntary acknowledgement.1991, c. 64, s. 526.
527.
Maternity is acknowledged by a declaration made by a woman that she is the mother of the child.Paternity is acknowledged by a declaration made by a man that he is the father of the child.
1991, c. 64, s. 527.
528.
Mere acknowledgement of maternity or of paternity binds only the person who made it.1991, c. 64, s. 528.
529.
An established filiation which has not been successfully contested in court is not impugnable by a mere acknowledgement of maternity or of paternity.1991, c. 64, s. 529.
SECTION II
ACTIONS RELATING TO FILIATION
530.
No person may claim a filiation contrary to that assigned to him by his act of birth and the possession of status consistent with that act.No person may contest the status of a person whose possession of status is consistent with his act of birth.
1991, c. 64, s. 530.
531.
Any interested person, including the father or the mother, may, by any means, contest the filiation of a person whose possession of status is not consistent with his act of birth.However, the presumed father may contest the filiation and disavow the child only within one year of the date on which the presumption of paternity takes effect, unless he is unaware of the birth, in which case the time limit begins to run on the day he becomes aware of it. The mother may contest the paternity of the presumed father within one year from the birth of the child.
1991, c. 64, s. 531.
532.
A child whose filiation is not established by an act and by possession of status consistent therewith may claim his filiation before the court. Similarly, the father or the mother may claim paternity or maternity of a child whose filiation in their regard is not established by an act and by possession of status consistent therewith.If the child already has another filiation established by an act of birth, by the possession of status, or by the effect of a presumption of paternity, an action to claim status may not be brought unless it is joined to an action contesting the status thus established.
The action for disavowal or for contestation of status is directed against the child and against the mother or the presumed father, as the case may be.
1991, c. 64, s. 532.
533.
Proof of filiation may be made by any mode of proof. However, testimony is not admissible unless there is a commencement of proof, or unless the presumptions or indications resulting from already clearly established facts are sufficiently strong to permit its admission.1991, c. 64, s. 533.
534.
Commencement of proof results from the family documents, domestic records and papers, and all other public or private writings proceeding from a party engaged in the contestation or who would have an interest therein if he were alive.1991, c. 64, s. 534.
535.
Every mode of proof is admissible to contest an action concerning filiation.Any mode of proof tending to establish that the husband or civil union spouse is not the father of the child is also admissible.
1991, c. 64, s. 535; 2002, c. 6, s. 29.
535.1.
Where the court is seized of an action concerning filiation, it may, on the application of an interested person, order the analysis of a sample of a bodily substance so that the genetic profile of a person involved in the action may be established.However, where the purpose of the action is to establish filiation, the court may not issue such an order unless a commencement of proof of filiation has been established by the person having brought the action or unless the presumptions or indications resulting from facts already clearly established by that person are sufficiently strong to warrant such an order.
The court determines conditions for the sample-taking and analysis that are as respectful as possible of the physical integrity of the person concerned or of the body of the deceased. These conditions include the nature and the date and place of the sample-taking, the identity of the expert charged with taking and analyzing the sample, the use of any sample taken and the confidentiality of the analysis results.
The court may draw a negative presumption from an unjustified refusal to submit to the analysis ordered by the court.
2002, c. 19, s. 5.
536.
In all cases where the law does not impose a shorter period, actions concerning filiation are prescribed by thirty years from the day the child is deprived of the claimed status or begins to enjoy the contested status.If a child has died without having claimed his status but while he was still within the time limit to do so, his heirs may take action within three years of his death.
1991, c. 64, s. 536.
537.
The death of the presumed father or of the mother before the expiry of the period for disavowal or for contestation of status does not extinguish the right of action.The heirs may exercise this right, however, only within one year after the death.
1991, c. 64, s. 537.
CHAPTER I.1
FILIATION OF CHILDREN BORN OF ASSISTED PROCREATION
538.
A parental project involving assisted procreation exists from the moment a person alone decides or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project.1991, c. 64, s. 538; 2002, c. 6, s. 30.
538.1.
As in the case of filiation by blood, the filiation of a child born of assisted procreation is established by the act of birth. In the absence of an act of birth, uninterrupted possession of status is sufficient; the latter is established by an adequate combination of facts which indicate the relationship of filiation between the child, the woman who gave birth to the child and, where applicable, the other party to the parental project.This filiation creates the same rights and obligations as filiation by blood.
2002, c. 6, s. 30.
538.2.
The contribution of genetic material for the purposes of a third-party parental project does not create any bond of filiation between the contributor and the child born of the parental project.However, if the genetic material is provided by way of sexual intercourse, a bound of filiation may be established, in the year following the birth, between the contributor and the child. During that period, the spouse of the woman who gave birth to the child may not invoke possession of status consistent with the act of birth in order to oppose the application for establishment of the filiation.
2002, c. 6, s. 30.
538.3.
If a child is born of a parental project involving assisted procreation between married or civil union spouses during the marriage or the civil union or within three hundred days after its dissolution or annulment, the spouse of the woman who gave birth to the child is presumed to be the child’s other parent.The presumption is rebutted if the child is born more than three hundred days after the judgment ordering separation from bed and board of the married spouses, unless they have voluntarily resumed living together before the birth.
The presumption is also rebutted in respect of the former spouse if the child is born within three hundred days of the termination of the marriage or civil union, but after a subsequent marriage or civil union of the woman who gave birth to the child.
2002, c. 6, s. 30.
539.
No person may contest the filiation of a child solely on the grounds of the child being born of a parental project involving assisted procreation. However, the married or civil union spouse of the woman who gave birth to the child may contest the filiation and disavow the child if there was no mutual parental project or if it is established that the child was not born of the assisted procreation.The rules governing actions relating to filiation by blood apply with the necessary modifications to any contestation of a filiation established pursuant to this chapter.
1991, c. 64, s. 539; 2002, c. 6, s. 30.
539.1.
If both parents are women, the rights and obligations assigned by law to the father, insofar as they differ from the mother’s, are assigned to the mother who did not give birth to the child.2002, c. 6, s. 30.
540.
A person who, after consenting to a parental project outside marriage or a civil union, fails to declare his or her bond of filiation with the child born of that project in the register of civil status is liable toward the child and the child’s mother.1991, c. 64, s. 540; 2002, c. 6, s. 30.
541.
Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.1991, c. 64, s. 541; 2002, c. 6, s. 30.
542.
Nominative information relating to medically assisted procreation is confidential.However, where the health of a person born of medically assisted procreation or of any descendant of that person could be seriously harmed if the person were deprived of the information requested, the court may allow the information to be transmitted confidentially to the medical authorities concerned. A descendant of such a person may also exercise this right where the health of that descendant or of a close relative could be seriously harmed if the descendant were deprived of the information requested.
1991, c. 64, s. 542; 2002, c. 6, s. 30.
CHAPTER II
ADOPTION
SECTION I
CONDITIONS FOR ADOPTION
§1. — General provisions
543.
No adoption may take place except in the interest of the child and on the conditions prescribed by law.No adoption may take place for the purpose of confirming filiation already established by blood.
1991, c. 64, s. 543.
544.
No minor child may be adopted unless his father and mother or his tutor have consented to the adoption or unless he has been judicially declared eligible for adoption.1991, c. 64, s. 544.
545.
No person of full age may be adopted except by the persons who stood in loco parentis towards him when he was a minor.The court, however, may dispense with this requirement in the interest of the person to be adopted.
1991, c. 64, s. 545.
546.
Any person of full age may, alone or jointly with another person, adopt a child.1991, c. 64, s. 546.
547.
A person may not be an adopter unless he is at least eighteen years older than the person adopted, except where the person adopted is the child of the spouse of the adopter.The court may, however, dispense with this requirement in the interest of the person to be adopted.
1991, c. 64, s. 547.
548.
Consent provided for in this chapter shall be given in writing and before two witnesses.The same rule applies to the withdrawal of consent.
1991, c. 64, s. 548.
§2. — Consent of the adopted person
549.
No child ten years of age or over may be adopted without his consent, unless he is unable to express his will.However, when a child under fourteen years of age refuses to give his consent, the court may defer its judgment for the period of time it indicates, or grant adoption notwithstanding his refusal.
1991, c. 64, s. 549.
550.
Refusal by a child fourteen years of age or over is a bar to adoption.1991, c. 64, s. 550.
§3. — Consent of parents or tutor
551.
When adoption takes place with the consent of the parents, the consent of both parents to the adoption is necessary if the filiation of the child is established with regard to both of them.If the filiation of the child is established with regard to only one parent, the consent of that parent is sufficient.
1991, c. 64, s. 551.
552.
If either parent is deceased, or if he is unable to express his will, or if he is deprived of parental authority, the consent of the other parent is sufficient.1991, c. 64, s. 552.
553.
If both parents are deceased, if they are unable to express their will, or if they are deprived of parental authority, the adoption of the child is subject to the consent of the tutor, if the child has a tutor.1991, c. 64, s. 553.
554.
A parent of minor age may himself, without authorization, give his consent to the adoption of his child.1991, c. 64, s. 554.
555.
Consent to adoption may be general or special; special consent may be given only in favour of an ascendant of the child, a relative in the collateral line to the third degree or the spouse of that ascendant or relative; it may also be given in favour of the spouse of the father or mother. However, in the case of de facto spouses, they must have been cohabiting for at least three years.1991, c. 64, s. 555; 2002, c. 6, s. 31.
556.
Consent to adoption entails, until the order of placement, delegation by operation of law of parental authority to the person to whom the child is given.1991, c. 64, s. 556.
557.
A person who has given his consent to adoption may withdraw it within thirty days from the date it was given.The child shall then be returned without formality or delay to the person who has withdrawn his consent.
1991, c. 64, s. 557.
558.
If a person has not withdrawn his consent within thirty days, he may, at any time before the order of placement, apply to the court to have the child returned.1991, c. 64, s. 558.
§4. — Declaration of eligibility for adoption
559.
The following may be judicially declared eligible for adoption:(1) a child over three months old, if neither his paternal filiation nor his maternal filiation has been established;
(2) a child whose care, maintenance or education has not in fact been taken in hand by his mother, father or tutor for at least six months;
(3) a child whose father and mother have been deprived of parental authority, if he has no tutor;
(4) a child who has neither father nor mother, if he has no tutor.
1991, c. 64, s. 559.
560.
An application for a declaration of eligibility for adoption may be made by no one except an ascendant of the child, a relative in the collateral line to the third degree, the spouse of such an ascendant or relative, the child himself if fourteen years of age or over, or a director of youth protection.1991, c. 64, s. 560.
561.
A child may not be declared eligible for adoption unless it is unlikely that his father, mother or tutor will resume custody of him and take in hand his care, maintenance or education. This unlikelihood is presumed.1991, c. 64, s. 561.
562.
The court, when declaring a child eligible for adoption, designates the person who is to exercise parental authority in his regard.1991, c. 64, s. 562.
§5. — Special conditions respecting adoption of a child domiciled outside Québec
563.
Every person domiciled in Québec wishing to adopt a child domiciled outside Québec shall previously undergo a psychosocial assessment made in accordance with the conditions provided in the Youth Protection Act.1991, c. 64, s. 563.
564.
The steps with a view to adoption are taken by the adopter, in accordance with the conditions provided in the Youth Protection Act, or, at the request of the adopter, by the Minister of Health and Social Services or an organization certified under the said Act.1991, c. 64, s. 564.
565.
The adoption of a child domiciled outside Québec may be granted only by judicial decision either outside Québec or in Québec. A judgment granted in Québec is preceded by an order of placement. For a judgment granted outside Québec, recognition by the court in Québec is necessary.1991, c. 64, s. 565.
SECTION II
ORDER OF PLACEMENT AND ADOPTION JUDGMENT
566.
The placement of a minor may not take place except on a court order nor may the adoption of a child be granted unless the child has lived with the adopter for at least six months since the court order.The period may be reduced by up to three months, however, particularly in consideration of the time during which the minor has already lived with the adopter before the order.
1991, c. 64, s. 566.
567.
An order of placement may not be granted before the lapse of thirty days after the giving of consent to adoption.1991, c. 64, s. 567.
568.
Before granting an order of placement, the court ascertains that the conditions for adoption have been complied with and, particularly, that the prescribed consents have been validly given.Where the placement of a child domiciled outside Québec is made under an agreement entered into by virtue of the Youth Protection Act, the court also verifies that the procedure followed is as provided in the agreement.
Even if the adopter has not complied with the provisions of articles 563 and 564, the placement may be ordered for serious reasons and if the interest of the child demands it. However, the application shall be accompanied with a psychosocial assessment made by the director of youth protection.
1991, c. 64, s. 568.
569.
The order of placement confers the exercise of parental authority on the adopter; it allows the child, for the term of the placement, to exercise his civil rights under the surname and given names chosen by the adopter, which are recorded in the order.The order is a bar to the return of the child to his parents or to his tutor and to the establishment of filial relationship between the child and his parents by blood.
1991, c. 64, s. 569.
570.
The effects of the order of placement cease if placement terminates or if the court refuses to grant the adoption.1991, c. 64, s. 570.
571.
If the adopter fails to present his application for adoption within a reasonable time after the expiry of the minimum period of placement, the order of placement may be revoked on the application of the child himself if he is fourteen years of age or over or by any interested person.1991, c. 64, s. 571.
572.
Where the effects of the order of placement cease and no adoption has taken place, the court, even of its own motion, designates the person who is to exercise parental authority over the child; the director of youth protection who was the legal tutor before the order of placement again becomes the legal tutor.1991, c. 64, s. 572.
573.
The court grants adoption on the application of the adopters unless a report indicates that the child has not adapted to his adopting family. In this case or whenever the interest of the child demands it, the court may require any additional proof it considers necessary.1991, c. 64, s. 573.
574.
The court, where called upon to recognize an adoption judgment rendered outside Québec, ascertains that the rules respecting consent to adoption and eligibility for adoption have been observed.Where the adoption judgment has been rendered outside Québec under an agreement entered into by virtue of the Youth Protection Act, the court also verifies that the procedure followed is as provided in the agreement.
Even if the adopter has not complied with the provisions of articles 563 and 564, recognition may be granted for serious reasons and if the interest of the child demands it. However, the application shall be accompanied with a psychosocial assessment.
1991, c. 64, s. 574.
575.
If either of the adopters dies after the order of placement, the court may grant adoption even with regard to the deceased adopter.The court may also recognize an adoption judgment rendered outside Québec notwithstanding the death of the adopter.
1991, c. 64, s. 575.
576.
The court assigns to the adopted person the surname and given names chosen by the adopter unless, at the request of the adopter or of the adopted person, it allows him to keep his original surname and given names.1991, c. 64, s. 576.
SECTION III
EFFECTS OF ADOPTION
577.
Adoption confers on the adopted person a filiation which replaces his or her original filiation.The adopted person ceases to belong to his or her original family, subject to any impediments to marriage or a civil union.
1991, c. 64, s. 577; 2002, c. 6, s. 32.
578.
Adoption creates the same rights and obligations as filiation by blood.The court may, however, according to circumstances, permit a marriage or civil union in the collateral line between the adopted person and a member of his or her adoptive family.
1991, c. 64, s. 578; 2002, c. 6, s. 33.
578.1.
If the parents of an adopted child are of the same sex and where different rights and obligations are assigned by law to the father and to the mother, the parent who is biologically related to the child has the rights and obligations assigned to the father in the case of a male couple and those assigned to the mother in the case of a female couple. The adoptive parent has the rights and obligations assigned by law to the other parent.If neither parent is biologically related to the child, the rights and obligations of each parent are determined in the adoption judgment.
2002, c. 6, s. 34.
579.
When adoption is granted, the effects of the preceding filiation cease; the tutor, if any, loses his or her rights and is discharged from his or her duties regarding the adopted person, save the obligation to render account.Notwithstanding the foregoing, a person’s adoption of a child of his or her spouse does not dissolve the bond of filiation between the child and that parent.
1991, c. 64, s. 579; 2002, c. 6, s. 35.
580.
Where one of the adopters dies after the order of placement is made, the adoption produces its effects from the date of the order.1991, c. 64, s. 580.
581.
Recognition of an adoption judgment rendered outside Québec produces the same effects as an adoption judgment rendered in Québec from the time the adoption judgment was rendered.1991, c. 64, s. 581.
SECTION IV
CONFIDENTIALITY OF ADOPTION FILES
582.
The judicial and administrative files respecting the adoption of a child are confidential and no information contained in them may be revealed except as required by law.However, the court may allow an adoption file to be examined for the purposes of study, teaching, research or a public inquiry, provided that the anonymity of the child, of the parents and of the adopter is preserved.
1991, c. 64, s. 582.
583.
An adopted person of full age or an adopted minor fourteen years of age or over is entitled to obtain the information enabling him to find his parents if they have previously consented thereto. The same holds true of the parents of an adopted child if the child, once of full age, has previously consented thereto.An adopted minor under fourteen years of age is entitled to obtain information enabling him to find his parents if the parents and the adoptive parents have previously consented thereto.
Consent may not be solicited; however, an adopted minor may not be informed of the application for information made by his father or mother.
1991, c. 64, s. 583.
584.
Where serious injury could be caused to the health of the adopted person, whether a minor or of full age, or of any of his close relatives if he is deprived of the information he requires, the court may allow the adopted person to obtain such information.A close relative of the adopted person may also avail himself of such right if the fact of being deprived of the information he requires could be the cause of serious injury to his health or the health of any of his close relatives.
1991, c. 64, s. 584.
TITLE THREE
OBLIGATION OF SUPPORT
585.
Married or civil union spouses, and relatives in the direct line in the first degree, owe each other support.1991, c. 64, s. 585; 1996, c. 28, s. 1; 2002, c. 6, s. 36.
586.
Proceedings for the support of a minor child may be instituted by the holder of parental authority, his tutor, or any person who has custody of him, according to the circumstances.A parent providing in part for the needs of a child of full age unable to support himself may institute support proceedings on the child's behalf, unless the child objects.
The court may order the support payable to the person who has custody of the child or to the parent of the child of full age who instituted the proceedings on the child's behalf.
1991, c. 64, s. 586; 2004, c. 5, s. 2.
587.
In awarding support, account is taken of the needs and means of the parties, their circumstances and, as the case may be, the time needed by the creditor of support to acquire sufficient autonomy.1991, c. 64, s. 587.
587.1.
As regards the support owed to a child by his parents, the basic parental contribution, as determined pursuant to the rules for the determination of child support payments adopted under the Code of Civil Procedure, is presumed to meet the needs of the child and to be in proportion to the means of the parents.The basic parental contribution may be increased having regard to certain expenses relating to the child which are specified in the rules, to the extent that such expenses are reasonable considering the needs and means of the parents and child.
1996, c. 68, s. 1.
587.2.
The support to be provided by a parent for his child is equal to that parent’s share of the basic parental contribution, increased, where applicable, having regard to specified expenses relating to the child.The court may, however, increase or reduce the level of support where warranted by the value of either parent's assets or the extent of the resources available to the child, or to take account of either parent's obligation to provide support to children not named in the application, if the court considers the obligation entails hardship for that parent.
The court may also increase or reduce the level of support if it is of the opinion that, in the special circumstances of the case, not doing so would entail undue hardship for either parent. Such hardship may be due, among other reasons, to the costs involved in exercising visiting rights in respect of the child, an obligation to provide support to persons other than children or reasonable debts incurred to meet family needs.
1996, c. 68, s. 1; 2004, c. 5, s. 3.
587.3.
Parents may make a private agreement stipulating a level of child support that departs from the level which would be required to be provided under the rules for the determination of child support payments, subject to the court being satisfied that the needs of the child are adequately provided for.1996, c. 68, s. 1.
588.
The court may award provisional support to the creditor of support for the duration of the proceedings.It may also award a provisional sum to the creditor of support to cover the costs of the proceedings.
1991, c. 64, s. 588.
589.
Support is payable as a pension; the court may, by way of exception, replace or complete the alimentary pension by a lump sum payable in cash or by instalments.1991, c. 64, s. 589.
590.
If support is payable as a pension, it is indexed by operation of law on 1 January each year, in accordance with the annual Pension Index established pursuant to section 119 of the Act respecting the Québec Pension Plan, in order to maintain the real monetary value of the claim resulting from the judgment awarding support.However, where the application of the index brings about a serious imbalance between the needs of the creditor and the means of the debtor, the court may, in exercising its jurisdiction, either fix another basis of indexation or order that the claim not be indexed.
1991, c. 64, s. 590.
591.
The court, if it considers it necessary, may order the debtor to furnish sufficient security beyond the legal hypothec for payment of support, or order the constitution of a trust to secure such payment.1991, c. 64, s. 591.
592.
If the debtor offers to take the creditor of support into his home, he may, if circumstances permit, be dispensed from paying all or part of the support.1991, c. 64, s. 592.
593.
The creditor may pursue a remedy against one of the debtors of support or against several of them simultaneously.The court fixes the amount of support that each of the debtors sued or impleaded shall pay.
1991, c. 64, s. 593.
594.
The judgment awarding support, whether it is indexed or not, may be reviewed by the court whenever warranted by circumstances.However, a judgment awarding payment of a lump sum may be reviewed only if it has not been executed.
1991, c. 64, s. 594.
595.
Support may be claimed for needs existing up to one year before the application.The creditor shall prove that he was in fact unable to act sooner, unless he made a demand to the debtor within one year before the application, in which case support is awarded from the date of the demand.
1991, c. 64, s. 595.
596.
A debtor from whom arrears are claimed may plead a change, after judgment, in his condition or in that of his creditor and be released from payment of the whole or a part of them.However,