Is it possible to get married without a contract?

The marriage contract is one of the components of the marriage but can it be done without making it official in the eyes of the state? The official document specifies the terms of management of the couple’s property. It also establishes the rules of life together. However, its establishment requires a series of complex and time-consuming procedures. The intervention of a notary is all the more essential. His or her services generate substantial costs. These different formalities discourage some couples. They prefer to avoid this administrative part and land directly at the wedding. However, to have a wedding without signing a contract is to rush headlong into a battle that promises to be difficult. So, what is life like for a couple after a marriage without a contract? Are there any risks involved? What to do if there is an unexpected change in the couple’s routine?

What is a non-contract marriage?

The marriage contract is an agreement between the partners when they formalize their union, but is its signature so important to the Canadian government?

A look at the marriage contract

The marriage contract is a legal document. Signed by the future spouses, the document sets out what happens to all the property of the couple. In other words, the marriage contract sets out the provisions of the matrimonial regime to be applied as of the union. It also anticipates events that could disrupt the couple’s life together (death, bankruptcy, divorce…).

Its authentication requires the presence of a notary. It is signed during the celebration of the union of the couple. However, matrimonial agreements can be drawn up before the celebration, but only become effective on the day of the wedding.

What is the purpose of a marriage contract?

The marriage contract offers an opportunity to choose your matrimonial regime beforehand. Its signature facilitates the control of property and the terms of succession. In the event of separation, it also sets out the procedures for the distribution of property.

The document protects the children born of the union, knowing that the matrimonial regime has a direct impact on their inheritance.

It also preserves theownership of certain property of the spouses. The categorization of all household assets varies according to the matrimonial regime.

As a solemn act, the conclusion of a marriage contract takes place before a notary. His presence facilitates the administrative procedures. The notary also provides the partners with the details of each matrimonial regime. He or she will guide you towards the model that best suits your expectations and needs.

So, what is a marriage without a contract?

The marriage contract is an essential part of a married couple’s life together. However, some partners do without this optional document.

A marriage without a contract is like an informal union. The absence of a marriage contract de facto triggers the common law matrimonial regime, i.e., a marriage under the regime of community of acquests. This provision applies under articles 1400 to 1280 of the Civil Code.

The matrimonial regime of community of acquests has a very specific mechanism. A joint acquisition of property during the marriage is the basis for its operation. It also implies a separation of property into private property and common property throughout the couple’s life together.

What is the regime of partnership of acquests?

The absence of a marriage contract in a civil union or marriage automatically places the couple under the regime of partnership of acquests, the default legal regime in Quebec since July 1970.

A regime with two categories of property

The regime of partnership of acquests includes two types of property: acquests and private property. Private property is property belonging to an individual and acquired before the union. Own property includes :

• bequests ;
• gifts; and
• property acquired during the union as a replacement for certain own property;
• compensation for replacement property;
• benefits received from a contract, insurance or pension plan;
• personal papers;
• wedding rings;
• clothing;
• alimony; and
• disability pension;
• work instruments used in the exercise of a profession.

Gifts and inheritances also belong to the community property.

Community property includes property acquired during the union of the couple. This includes wages, investment income and their fruits. However, the purchase of property from one’s own funds (funds from a previous union, inheritance or gifts) designates the purchaser as the sole owner. Therefore, the property becomes an own property.

A specific division of property in case of separation

In case of separation of the couple, each ex-partner leaves with his own property. However, the acquired property will be subject to division. The adjustment of the family patrimony precedes the distribution of the property. The operation will ensure that the value of these assets is divided equally.

The future ex-spouses then carry out the balance sheet of the acquests. A negative result of the balance sheet interrupts the partition procedures. Likewise, the spouse’s refusal to share the property compromises the proceedings. However, even if your ex-spouse refuses to divide your share of the acquests, he or she is entitled to claim his or her share of the acquests.

A matrimonial regime with many advantages

The default legal regime in Canada spares you theconstraints of drawing up a marriage contract. It avoids the often exorbitant notary fees and interminable processes.

It also benefits spouses with little wealth and low income. They can do without a marriage contract. In the event of a divorce, it is easy to distinguish between private and common property.

Moreover, the management of property received as part of a succession or a gift without a marriage contract falls outside the scope of the partnership of acquests. The same applies to personal property acquired before the marriage without a contract.

A system with flaws

The regime of partnership of acquests conceals some flaws. Theacquisition of a largepiece of real estate cannot be done without theagreement of both spouses. The opposition of one spouse is enough to disrupt the other spouse’s real estate project. Obviously, the situation could deteriorate their relationship and jeopardize the couple’s durability.

Moreover, the regime of partnership of acquests commits the spouses to solidarity of debts. In other words, each spouse is responsible for the other’s debts. This provision is a major disadvantage for a spouse married to a person suffering from “borrowing fever”. This is a syndrome of compulsive debt contractions. Gradually, the urge undermines the couple’s financial situation.

What are the risks of a marriage without a contract?

A marriage without a contract has undeniable financial consequences. Couples should be informed of this before making their decision.

Who inherits without a marriage contract?

Marriage without a contract complicates inheritance and succession. In the event of death, half of the joint property goes to the surviving spouse. Of course, the surviving spouse will keep his or her own property.

The privileged persons previously designated in the will and the children inherit the deceased’s property. The remainder of theinheritance and the common property are divided by half.

In the absence of a marriage contract, the surviving spouse can increase his or her share of the inheritance by virtue of a last living gift, also known as a spousal gift. This is a measure in favour of the survivor that affects the donor’s property upon his or her death. The donor can revoke the living gift at any time during his or her lifetime, even without the knowledge of his or her partner.

What are the terms of a divorce in a marriage without a contract?

A marriage without a contract that ends in divorce benefits couples with little wealth. The division of the joint assets is easily done in two equal parts. In the event of a divorce, the division of property without a marriage contract into equal shares applies to the joint estate, i.e. to the assets and liabilities accumulated during the marriage. Own property remains the personal property of the spouses.

However, the choice may work against them if one spouse exercises a profession that may involve financial risks. In the event of a bankruptcy or budgetary destabilization of the household, creditors are entitled to seize the own property and the common property.

In this context, the accumulated debts complicate the establishment of the real contributions of each in the compensation of the debts. The matter can then turn into a nightmare and end up in litigation.

What about debts?

Debts in a marriage without a contract are to be contracted in small doses, because they grant a right to the creditor. The creditor can seize the debtor’s own property and joint property under any circumstances.

Fortunately, the creditor has no power over the other spouse’s property. Similarly, debts incurred for the education of the children and the maintenance of the household (including water and electricity bills, food, clothing and school fees) are excluded from the creditor’s right.

In addition, the loan is binding on the spouses only with their consent. Without their consent, the debtor’s spouse is under no obligation to assign his or her own property as repayment or pledge. In this case, the debtor remains the only person liable for repayment. Only the debtor’s assets and income will be seized in the event of default.

How to protect your assets without a marriage contract?

Certain measures must be taken to remedy the consequences of a divorce without a marriage contract and the seizure of assets in the event of default.

Changing the matrimonial regime

Spouses are free to change and modify their matrimonial regime provided that :

• they use the services of a notary;
• they establish a new regime that serves the family interest;
• the persons concerned are kept informed (the spouse, the children of full age, the representatives of minor children still under guardianship and the creditors).

The change in the regime of community of acquests requires a homologation (an approval of an act or an agreement by the judge). It is granted by the judicial court of the family’s place of residence. Its intervention is necessary only if the persons concerned express opposition.

The presence of a lawyer is also indispensable. His/her mission is to present a request (a written and formalized document ensuring the seizure of the court) to be sent to the court in the names of both spouses. The document is accompanied by a notarized deed and completes the procedures for modifying the current regime (partnership of acquests).

Drawing up a declaration of unseizability

In a marriage without a contract, a spouse who is an entrepreneur or has a risky job can put the couple’s budget at risk. If he or she gets into debt, creditors can seize any type of property of both spouses. To protect the family patrimony, the other spouse initiates a declaration of unseizability before a notary. The legal device aims to protect non-professional real estate, built and unbuilt property. It should be noted that the principal residence is an unseizable property by right.

The spouse then separates the personal assets from the professional assets by encouraging his or her entrepreneurial partner to create an individual limited liability company. Then, he or she makes a declaration of the assets assigned to the professional activity in order to distinguish the professional assets from the rest of the family assets.