For Equal Treatment: Civil Union

Consultation Document Regarding the Draft Bill on Same-Sex Civil Unions

A draft bill on same-sex civil unions was introduced at the National Assembly on December 7, 2001. It aims at granting a new institution to same-sex couples referred to as civil union. Partners who commit to this new legal union will have, with a few exceptions, the same rights and obligations as married couples. Civil union reflects the evolution of social values and the needs of citizens.

At the beginning of next year, a parliamentary commission will be convened to allow everyone to express their point of view on the various elements of the draft bill. Those concerned are invited to send their reports to the Justice Minister before January 22, 2002. The passing of the law is expected during the legislative session in Spring 2002.

• The situation in Québec
• The legislative jurisdiction of Québec
• Conditions for the formation of a civil union
• Public nature of the civil union
• The effects of civil union
• Broadening of the concept of partner

The situation in Québec

According to the last census in 1996, over 20% of couples had decided to live in a stable common-law relationship, either heterosexual or homosexual, without getting married. It was observed that 3% of these cases were same-sex couples. For many years now, the homosexual community has requested the same advantages, rights and responsibilities as married couples for people of the same sex who live together. The draft bill proposes to meet these expectations.

This bill is part of the judicial tradition in Québec which, in 1977, introduced a ban on discrimination based on sexual orientation into the Charter of Human Rights and Freedoms. In 1999, the National Assembly, which, in many laws, has recognized the reality of people in de facto unions, regardless of their sex, unanimously passed a law which modifies different legislative provisions concerning common-law spouses.

The legislative jurisdiction of Québec

As marriage is part of federal jurisdiction, the basic conditions can be modified only by the federal parliament. The impossibility for same-sex partners to make a public commitment in marriage ensues from one of these basic conditions: the authorization to get married is only granted to a man and a woman.

Within the limits of the legislative jurisdiction of Québec, the draft bill on civil union proposes a new legitimate relationship between consenting people which would allow same-sex couples to publicly commit themselves to a life together and to respect the rights and obligations related to their commitment.

Modifications to the Civil Code of Québec – The Civil Code of Québec will be modified in order to determine the conditions for the formation, celebration, public nature and dissolving of civil union. It will create the new civil status of partner. As in the case of marriage, the Registrar of Civil Status will have to draw up, modify and ensure the public nature of the civil union act. The new partners may be subject to a patrimonial regime, derived from the regulations of matrimonial contracts and regimes (separation or community of property or partnership of acquests). If there is no contract, the partners will be governed by the legal regime which applies when the spouses did not sign a marriage contract: the partnership of acquests regime.

Modifications to Existing Laws – Many concordance adjustments are proposed in the draft bill to recognize the new civil union in the legislation as a whole, for example, the integration of civil union in laws related to retirement plans, the Québec pension plan, occupational injuries, automobile insurance, health insurance, income security and taxation statutes.

Furthermore, it will be up to the federal parliament to modify certain legislative provisions it is responsible for in order to recognize the existence of partners governed by civil union, notably concerning federal income tax and the goods and services tax.

Conditions for the formation of a civil union

Partners who wish to commit themselves in civil union must meet the following conditions:

• they must be of the same sex;
• they must be at least 18 years of age;
• they must not be closely related to each other (father, mother, son, daughter, brother, sister);
• they must not have any marriage ties or other partnerships;
• they must give public consent in the presence of an authorized officiant and two witnesses;
• any person who is authorized to perform marriages, such as religious ministers, clerks or deputy clerks of the Superior Court, can perform civil unions;
• prior to solemnization, the officiant must verify the identity of the future partners, ensure that the conditions of formation have been fulfilled and that certain formalities have been observed, such as the posting of a notice for a period of 20 days before the set date for the civil union.
  
  

Public nature of the civil union

The civil union of two people will be proven by the certificate of civil union, which will be a new constituent certificate of civil status, as are birth, marriage and death certificates. It will be drawn up by the Registrar of Civil Status based on the declaration signed by the officiator, the partners and the witnesses.

The effects of civil union

The civil union takes effect following solemnization, as in the case of marriage. The partners will therefore have a mutual obligation of respect, fidelity, aid and assistance. They will promise to live together as married couples do. They will also have the same rights and obligations as married people with regard to:

• the choice and protection of the family residence;
• the establishment of family patrimony to ensure the economic equality of the partners and the circumstances leading to the division of family property (nullity or dissolution of the union);
• a compensatory allowance for the contribution to and enhancement of the partner’s patrimony, established at the time of the nullification or dissolution of the union or the death of the partner;
• the interests likely to be insured with respect to the life and health of the partner and his or her descendants, his or her irrevocable designation as beneficiary of an insurance, and the exemption from seizure conferred by the contract;
• the right of succession, that is to say the devolution of estate to the surviving partner and the relatives of the deceased in order and according to the rules of the Civil Code, unless testamentary dispositions indicate otherwise;
• the responsibility for the family, assuming of parental authority and contribution to household expenses;
• the interruption of prescription between the partners during their cohabitation;
• the mutual support obligation established by taking into account the needs and powers of the parties, the circumstances and, if it is the case, the time required for the creditor to become self-sufficient;
• the receiving of a support allowance by the Minister of Revenue, according to the clauses determined in the law which facilitate the payment of support (R.S.Q, chapter P-22), when an allowance is granted in accordance with an enforceable judgment in Québec or in accordance with the agreement of dissolution of the civil union;
• finally, in the event that the partners are unable to agree on the use of their rights or on the fulfilment of their duties, they may refer to a court which will give a ruling after favouring the accommodation of the parties

Nullity and Dissolution of a Civil Union – A civil union which does not meet legal requirements may be declared null, with the same effects as a marriage that has been nullified.

Apart from the death of one of the partners, civil union may also be dissolved by a court decree or by a joint statement by the partners.

Unlike divorce procedures, the law enables notaries to receive a joint statement of dissolution of the civil union and to register this agreement without the intervention of the court. Partners may make this statement when they no longer wish to live together, providing that they have settled all aspects of the dissolution and that no children are involved. The notary may then register the agreement.

The notary must also make certain that the consent of the partners is real and that the agreement is not contrary to mandatory laws or public order. The notarized statement will have the same effects as a judgment of dissolution of the civil union by a court.

The effects of dissolution are comparable to those of divorce, from the moment the dissolution is certified by a notary. It will be notified to the Registrar of Civil Status, who will enter the appropriate information in the Register of Civil Status.

Payment of Support – The act which enables the payment of support also applies in the case of support which is established following an agreement and a joint statement of the dissolution of a civil union, certified by a notary when included in the agreement which is notified with the declaration to the minister or when he notes that the support payer is at fault.

As for private international law, a civil union which is contracted in Québec may be claimed in other countries, providing that the laws of these countries recognize it. A civil union which is contracted in another country will be recognized in Québec, as is a marriage contracted abroad, inasmuch as it is similar to the regime implemented in Québec.

Broadening of the concept of partner

Furthermore, the draft bill modifies the Civil Code as well as many other acts and application texts to make effective enactments and regulatory provisions aimed at a situation of common life rather than marital status, for people who are bound by civil union as well as for partners of the same sex or of different sexes in a de facto union. These provisions notably concern the ability to consent for the other person for medical care or autopsy, conflicts of interest, disqualification and non-compellable witnesses. Thus, the spouse, partner in a civil union, or partner in a de facto union will be empowered, should there be no mandator, tutor or trustee, to consent to care required by the partner’s state of health when he or she has been recognized as unable to make the necessary decisions; a witness cannot be forced to disclose information given by his or her partner, including a partner in a de facto union, during their life together.

Québec, 7 December 2001

See also
Civil union

Latest update: April 30, 2009