GIFTS AFTER MARRIAGE-SOME ASPECTS OF
ARTICLE 1265 OF THE QUEBEC CIVIL CODE
Harold Newman*
Article 1265 of the Quebec Civil Code reads:
After marriage, the marriage convenants contained in the contract cannot be
altered, (even by the donation of usufruct, which is abolished), nor can the consorts
in any other manner confer benefits inter vivos upon each other, except in conformity
with the provisions of the law, under which a husband may, subject to certain con-
ditions and retrictions, insure his life for his wife and children.
The article comprises two prohibitions:
(a) against altering the maririage covenants after marriage;
(b)
against the conferring of benefits inter vivos by one consort upon
the other (with the exception therein stated).
A term requiring definition in the article is “marriage covenants contained
in the contract.” Article 1257 C.C. says: “All kinds of agreements may law-
fully be made in contracts of marriage . . . ” The “marriage covenants” in
article 1265 are these “all kinds of agreements” mentioned in article 1257,
and “the contract” in article 1265 is the “contracts of marriage” of article
1257. What, then, is a contract of marriage, as contemplated by article 1257?
It is not the marriage itself, although that too is a “contract of marriage”.’
The contract of marriage referred to in article 1257 is one by which, before
marriage, the future consorts arrange what are to be their financial relations
during their married life.2
Article 1264 C.C. lays down the requirement that all marriage contracts be
made in notarial form, and before the celebration of the marriage, on which
they are conditional.3 The statement that the contract is conditional upon the
celebration of the marriage is a mere truism, since it is obvious that the
contract cannot take effect unless it is followed by a marriage between the
contracting parties, who have entered into it solely for the purpose of defining
their financial relations as husband and wife.
*Harold Newman, LL.B., B.C.L., graduated with high honours from McGill University.
He was admitted to the Quebec Bar in 1923.
lArt. 115 C.C.: “A man cannot contract marriage before the full age of fourteen
years . ..
MIGNATULT, LE DROIT CIVIL CANADIEN, Vol. 6, p. 127: “… c’est le contrat indissoluble
par lequel deux personnes de sexe diff6rent s’unissent dans une m~me communaut6 de vie”.
2ldem, p. 128.
8In certain localities, which are excepted by special laws, the contract need not be in
notarial form.
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Before proceeding to a consideration of article 1265, it may be well to
consider article 1266, which provides that, before the marriage, the marriage
covenants may be altered, with the consent and in the presence of all such
parties to the first contract as are interested in the alterations, but such
alterations, too, must be in notarial form. An interesting case with relation
to this article is Gaqn6 v. Berthiaumne.4 In this case, a future husband and
wife jointly signed a promissory note in favour of the future husband’s
parents, for a debt which the future husband owed them. The note was given
during the period between the signing of the marriage contract and the
celebration of the marriage. The marriage contract provided that the consorts
would be separate as to property, and that neither would be responsible for
any debts of the other, whether incurred prior to the marriage or after it.
Not long after the marriage, the husband died, and the parents sued the widow
for the amount of the note. In defence, she relied on article 1266 C.C., and
the court maintained her defence, pointing out that “alterations in the mar-
riage covenants” meant any agreement which derogated from the covenants,
not only between the parties themselves, but even between one of the parties
and a third party. Anything which modified the situation created by the
contract, and which resulted in an increase or decrease of the advantages con-
ferred by it, was an alteration, which, to be valid, had to be in notarial form.
The promissory note was not in notarial form, and hence was null and void.
This case, although it dealt with a pre-marriage transaction, is pertinent to a
consideration of article 1265, because the note would have been equally open
to attack if it had been given after the marriage. The word “altered” in article
1265 has the same connotation as “alterations” in article 1266, and the giving
of such a note would be no less a variation of the marriage contract after the
celebration of the marriage than before. However, the question would be
purely academic, as the obligation assumed by the wife would in any case be
void as being in violation of article 1301 C.C.5
To return to article 1265, we have seen that the first part of the article
prohibits alterations in the marriage covenants after the marriage. This means,
of course, that no new marriage contract can be entered into, nor can the
terms of the original contract be varied in any way.” This is quite clear, and
seems to require no comment, but a special case, of limited but increasing
application, -must be mentioned. I refer to agreements in contemplation of
divorce. Article 185 of the Civil Code says: “Marriage can only be dissolved
by the natural death of one of the parties; while both live, it is indissoluble”.
4[1951] S.C. 366, Boulanger, J.
GSee discussion of article 1301 in (1951) 29 Can. Bar Rev., pp. 345 and ff.
ONor can a marriage contract be made if none was made before the marriage –
art.
1264 C.C.
1953]
GIFTS AFTER MARRIAGE
However, as is well-known, marriages are frequently dissolved by Act of
Parliament, this constituting the sole exception to the article.7
Agreements in contemplation of divorce are a commonplace in the United
States, and are frequently resorted to in the other provinces of- Canada.
Without going deeply into the question of the legality of such agreements, it
can be said that they are perfectly legal if they are not “collusive”, that is,
if there are real (not manufactured) grounds for the divorce, if the taking of
the divorce proceedings was not induced by a “bargain”, and if no deception
is practised upon the court.s There is no reason to believe the Quebec courts
would take a different view. In X v. Z,9 Mr. Justice Mackinnon held that
such an agreement was not contrary to public order. In Bigelow v. Reddy, 10
Mr. Justice Duclos upheld a similar agreement. But here enters the complica-
tion of article 1265. Even though the provisions of the pre-divorce agreement
are to take effect after the marriage has been dissolved by the divorce, they
must not vary the terms of the marriage contract.
In France, article 1395 C.N. is to the same effect as the first part of our
article 1265. It reads: “Elles (les conventions matrimoniales) ne peuvent
recevoir aucun changement apr~s la c6lbration du mariage”. It has been
held that this applies even to changes which are to take effect after divorce:
“La r6gle de l’immutabilit6 des conventions matrimoniales prohibe aussi bien
les changements qui produisent effet durant le mariage que ceux qui doivent
produire leurs effets seulement apr~s la dissolution”. 1′ The case of X v. Z 12
already referred to, is authority for the statement that the law of Quebec is the
same. In this case, the husband sued the wife for divorce (in New York,
although they were domiciled in Montreal) on the ground of adultery. During
the pendency of the divorce suit, husband and wife entered into a written
agreement by which the husband agreed to pay the wife a certain sum each
month throughout her lifetime, as permanent alimony, irrespective of the
divorce, and regardless of whether the divorce action was successful or not.
The husband also undertook to provide in his will for the continuation of the
payments after his death. A divorce was granted, and some years later, the
ex-wife sued for arrears of the stipulated payments. (She had meanwhile re-
married). The Parties were at all times domiciled in the Province of Quebec,
7Judgments of annulment of marriage are not a real exception, as they are rendered on
the ground that there never was a valid marriage.
8Dutko v. Dutko [1946] 4 DL.R. 471.
Hutton-Potts v. Royal Trust Co. [1950] 1 D.L.R. 50.
Dennis v. Moni [1945] O.W.N. 340.
Prockiw v. Prockiw [1947] 3 D.L.R. 504; [1948] 4 D.L.R. 140.
9(1935) 43 R. de J. 219.
10(1940) 78 S.C. 277.
1LFuzlER-HERMAN, CODE CIVIL (1940) art. 1395, no. 52. See also: S. 1937.1.57 and
S. 1930.2.100.
12(1937) 43 R. de J. 219.
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as well when they married as at the time of the making of the pre-divorce
agreement.
The court seized of the wife’s action held that the agreement to pay alimony
after the divorce conferred a benefit on the wife, in violation of article 1265.
The obligation of the husband was to Support his wife during the marriage,
and the extension of this obligation to a period after the termination of the
marriage was tantamount to the conferring of a benefit which was forbidden
by article 1265. The contrary was void as violating the article, but was not
contrary to public policy or good morals.’3
Similarly, any agreement by which the marriage covenants would be varied
by being made more onerous or less onerous would be annullable. It has been
held by our courts that a divorce has the same effect as the death of one of the
consorts, in bringing into operation the provisions of a marriage contract or of
the law which would become effective upon such death. 4 In Desnoyers v.
David, ‘5 the Court held: “Considering that the divorce.., dissolved the mar-
riage as effectually as the natural death of one of the parties would have done,
so far as the matrimonial rights of the parties inter se are concerned”. In
Dawson v. Hislop,’6 Bruneau, J.. put it thus: “Divorce is the equivalent of
the natural death of the defendant for the purpose of ascertaining the matrim-
onial rights of the spouses inter se”.1 7 If divorce is equivalent to the death of
a consort in bringing the terms of the marriage contract into operation, it
follows that the wife becomes entitled to claim sums stipulated in the mar-
riage contract to be payable to her upon the death of the husband. Then if, in a
pre-divorce agreement, she should undertake to accept the sum in instalments
instead of in a lump sum, it would seem that this would be a violation of
article 1265, since payment in instalments is less onerous to the debtor and
less advantageous to the creditor than payment in a lump sum. And a stipula-
tion that the benefited consort is to lose his or her rights upon re-marriage
(a provision which is often used), is even more objectionable, under our law.
Of course, an outright renunciation of a benefit conferred by the marriage
contract would clearly be invalid as constituting an alteration in the marriage
covenants, and could be set aside at the demand of the wife, ‘her heirs or her
creditors (if they are prejudiced thereby). But a renunciation must not be
13 This case is of interest also as illustrating the principle that the matrimonial domicile
determines the matrimonial status of the parties for all time.
14Art. 1310 C.C.: “The community is dissolved: 1. By natural death… .
15(1923) 61 S.C. 206.
16(1922) 60 S.C. 336, at 341.
17See FRASER, HUSBAND AND WIFE, vol. 2, p. 1217, where it is said that (under Scots
law, which is similar to that of Quebec) the innocent party can claim benefits under the
marriage contract which would be payable if the marriage were dissolved by death. In
Quebec, there would seem to be no room for distinction between the innocent party and
the guilty one, on this score, since the Senate Divorce Committee does not and cannot
pronounce forfeiture of financial benefits.
1953]
GIFTS AFTER MARRIAGE
confused with what is really the exercise of a right. In Bigelow v. Reddy,”8
the wife renounced in favour of her children a sum of $10,000 payable to her
under the marriage contract. This was held perfectly valid, since the so-called
renunciation was really the exercise of her right, plus a transfer thereof
to the children. The wife did not relieve her husband of the obligation to pay;
she maintained the obligation and made the children the beneficiaries of it.
On this point, Guillouard says :19 “I1 faut combiner le principe que les poux
ne peuvent renoncer aux avantages qu’ils se sont faits, avec le droit qui leur
appartient de disposer de leur fortune pendant le cours du mariage. Par
exemple, si l’un des 6poux renonce A l’avantage que son conjoint lui a fait au
profit de l’un de leurs enfants, la renonciation sera valable, si elle transf~re
.1’enfant donataire l’avantage auquel le p~re ou la m~re renonce”.
Incidentally, the failure of the consorts to make a pre-nuptial agreement
is in itself a sort of contract. Article 1260 C:C. says: “If no covenants have
been made, or if the contrary have not been stipulated, the consorts are
presumed to have intended to subject themselves to the general laws and
customs of the country, and particularly to the legal community of property
. . . “. One of the consequences of being in community of property is that
upon the dissolution of the community, the wife has the right either to accept
or renounce it.20 In P. v. L, 2 ‘ it was held by the Quebec Court of Appeal that
a renunciation of the-community by the wife prior to the enactment of an Act
of divorce by Parliament Was void, and the wife could, after the divorce-was
granted, sued for a partition of the community. This case also touched upon a
point already mentioned. The husband claimed that since the divorce had
been granted on the ground of the wife’s adultery, she was excluded from
sharing in the community property. The Court, however, pointed out that it
was only in cases of separation from bed and board that such exclusion could
occur, and then only when it was ordered by the judgment in the separation
action (article 209 C.C.) Finally. on the question of a change in the marriage
covenants, it is to be noted that an alteration in the mode of payment of a
gift provided for in the marriage contract is not necessarily objectionable.
Baudry Lacantinerie says :22 “II est possible, sans transgresser la d~fense
6crite dans l’article 1395, d’apporter quelques changements dans le mode de
paiement de la dot promise. On peut tr~s bien convenir, par exemple, que la
dot sera pay6e en immeubles quoiqu’elle ait 6t6 promise en argent”.
Let us now return to the second part of article 1265, which forbids the
consorts to “confer benefits inter vivos on each other, except in conformity
18(1940) 78 S.C. 277.
lODu CONTRAT DE MARIAGE, VOl. 1. No. 235.
20Art. 1338 C.C.
21[1953] K.B. 119.
22Contrat de Mariage. No. 110.
204
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with the provisions of the law under which a husband may, subject to certain
conditions and restrictions, insure his life for his wife and children”. This
provision is necessary, if the first part of the article is to be at all effective,
for it would be easy to circumvent the provisions of the marriage contract
by transfers of property from one consort to the other, if the prohibition
contained in the second part of article 1265 did not exist.
Now, what is meant by “confer benefits” ?23 In general, it means increasing
the assets of one of the consorts by diminishing those of the other. This does
not necessarily mean than any transfer of assets from one to the other is a
violation of the article. For instance, loans from one consort to the other have
been held not to be barred by the prohibition. 24 As an extension of this
principle, it has been held that if a wife pays her -husband’s debts, article 1265
-is not infringed. The sum paid out is deemed to be a loan to the husband, not
a gift. A case in point is Leclerc v. Brossard,5 where a wife transferred to her
husband’s creditor, in payment of her husband’s debt, a claim which she had
against a third party. The judges of the Court of Appeal held that the transfer
of the claim by the wife was equivalent to a loan to the husband, which, as
already pointed out, is permissible.2 6
Further, the renunciaion by the wife of a hypothec or other real right in
immoveables owned by her husband, which right was given to guarantee the
payment of gifts stipulated in the marriage contract, is not forbidden by
article 1265, according to the decisions of our courts. In Laframboise v.
Vallieres27 the Supreme Court of Canada held such a renunciation valid.
23As for the words “inter vivos”; art. 755 C.C. says: “Gift inter vivos is an act by which
the donor divests himself of the ownership of a thing, in favour of the donee . . . ” Gifts
inter vivos are contrasted with dispositions in contemplation of death. Art. 758 C.C. says:
“Every gift made so as to take effect after death, which is not valid as a will, or as
permitted in a contract of marriage, is void.” Reading these articles with 1265, we con-
clude that the consorts, after the marriage, can make wills in each other’s favour, but
cannot otherwise pass the ownership of assets from one to the other.
24Dery v. Paradis (1900) 10 K.B. 227.
Bank of Toronto v. Perkins (1881) 1 D.C.A. 357.
Allard v. Legault [1945] S.C. 287.
Irvine v. Lefebvre (1893) 4 S.C. 75, 77.
25(1927) 42 KLB. 460.
26But it has been held in two cases that a wife cannot hand over her immoveable
property to a creditor in payment of her husband’s debt. The two cases are:
Walker v. Crebassa, (1865) 9 L.C.J. 53.
Belanger v. Brown (1870) 14 L.C.J. 259.
In the latter of these cases, it was said by the Court that if the wife had sold her
poperty and used the proceeds to pay her husband’s debt, the transaction would have been
valid. No reasons for judgment were given by the court. Perhaps the point is that a
violation of article 1301 was involved, in that the wife was bound by law to warrant the
transferee against eviction and against latent defects. (See discussion of this matter in
(1951) 29 Can. Bar Review, at pp. 354 and 355, footnote.
27[1927] S.C.R. 193.
1953]
GIFTS. AFTER MARRIAGE
Voluminous authorities were cited by Rinfret, J. (now C.J.) The point was
that the wife had not renounced the gift, only the security, which was permis-
sible.28 The very respectable authority of Pothier’s opinion supports this
holding, for he says :29 “La remise qu’une femme fait
son mar d’un droit
d’hypoth~que qu’elle a sur un hritage te son mar, en consentant
la vente
qu’il en fait, est valable, et n’est point regarde comme une donation prohib~e
entre mar et femme… La raison est que la remise qui est faite au conjoint
de ce droit d’hypoth~que, n’apportant aucune diminution i sa dette, ne le
rend pas plus riche qu’il ne l’6tait auparavant. Or c’est un principe de droit
romain, qu’il n’y a de donations prohibes, entre homme et femme, que celles
par lesquelles l’un s’enrichit aux d~pens de l’autre: Ubicunque non deminuit
de facultatibus suis qui donavit; vel etiarn si deminuat, locupletior tamen non
sit qui accepit, donatio valet.” If it be objected that this doctrine is not entirely
satisfactory, in that the relinquishment of the wife’s right over the husband’s
immoveable constitutes a real diminution of her assets, and that the abandon-
ment of the security may result in the total loss of her claim against her
husband, the answer is that the principle is so well established, both in the
doctrine and in the jurisprudence, that -it would be quite futile to dispute it.
Although article 1265 forbids the conferring of benefits by one consort on
the other, it is generally agreed that this is not intended to bar gifts of clothing
and even of jewelry and other assets of modest proportions. “M’dodest propor-
tion” is a relative term; the financial status of the donor must be taken into
account. Thus, a gift by a millionaire to his wife of a ten thousand dollar
bracelet would be of modest proportions, while one worth five hundred dollars,
given by a man without resources, would not be so considered. In Eddy v.
Eddy,30 it was held that a husband could not reclaim from the ‘heirs of the wife
gifts of furniture and jewelry, when the gifts were of a modest amount in
proportion to his fortune. The gifts, in all, amounted to less than $6,000 over
a period of years, and the husband had assets of $500,000. Likewise, it is
permissible for the husband to give his wife money periodically for household
expenses.31
The transfer of assets from one consort to the other by means of an inter-
posed person to whom the property is first transferred, and who subsequently
makes it over to the other consort, is, of course, a violation of article 1265.32
28See also Hamel v. Panet [1876] 2 A.C. 181, to the same effect.
2 9
DoNATIONS ENTRE MARI El FEM E, Bugnet, 2nd ed., vol. 7, No. 41. p. 464.
30(1898) 7 Q.B. 300.
31Goidet v. Gratton (1915) 47 S.C. 465.
lodoin v. Theriault (1916) 50 S.C. 347.
Naturally, the sums given must be proportionate to the husband’s means. If the wife, by
managing well, can save some of the allowance thus given her, she can keep the surplus
without violating article 1265.
32Fonderie de Plessisville v. Dubord (1889) 17 R.L. 499.
Carter v. McCaffrey (1892) 1 Q.B. 97.
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The final part of article 1265 makes an exception in favour of insurance
on the husband’s life in favour of the wife, under the laws permitting such
insurance. I do not intend to discuss these laws here; it is sufficient for our
purpose to note that, by exception, such insurance is permissible, even though
it constitutes the conferring of a benefit by the husband on the wife. However,
to revert for a moment to the question of the effect of divorce upon the rights
of the consorts, the courts have held that if the consorts are divorced, the wife
ceases to have any claim to the insurance, which reverts to the husband.33
And, although the law permits a husband to insure his life for the benefit of
his wife, the latter cannot insure her life for the husband’s benefit.3 4 This is
merely the application of article 1265, which does not make an exception in
favour of such insurance on the wife’s part. Finally, on this question of in-
surance, the case of Morin v. Bolduc35 may be mentioned. In this case, it
was held that where the marriage contract stipulated that the husband donated
to his wife the benefit of a policy on his life and undertook to keep it in force,
but permitted it to lapse, the wife could, after his death, claim from his
executors the face amount of the policy.
We have seen that the consorts cannot evade the -prohibition against altering
the marriage covenants by conferring benefits upon each other, either directly
or through an interposed person. Nor can they do so by subterfuge. In
Lamarche v. Cardin,36 the consorts, dissatisfied with the terms of the con-
tract, arranged that the wife should take an action in separation as to bed
and board, concluding that the husband be deprived of the benefits provided
by the marriage contract. The action was duly taken and judgment rendered
accordingly, but the judgment was later set aside at the suit of the husband,
on the ground that the arrangement was a scheme to violate article 1265 by
altering the marriage covenants.
A final word as to the nature of the nullity of transactions violating the
prohibitions of article 1265. Although the article is frequently referred to as
one having to do with public order, the courts have repeatedly held that
advantages conferred in violation of the article are not radically null, and can
be attacked only by a person who has been or may be prejudiced by them.
Thus, in Nadeau v. Prevost,37 it was -held: “La vente38 ou l’avantage entre
conjoints ne sont pas radicalement nuls et inexistants; ceux dont les droits
sont on peuvent Etre 16s6s, sont seuls admis i opposer cette nullit6. Ainsi
dans le.cas de donation de cr6ance par le mar A sa femme, le c~d6 ne peut
33Dame Witwr v. Great West Life (1941) 79 S.C. 262.
34Belanger v. Perras, (1927) 65 S.C. 502.
35[1952] S.C. 362.
36(1949] S.C. 384.
37(1917) 52 K.B. 387.
3$Article 1483 C.C. says: “Husband and wife cannot enter into a contract of sale with
each other”.
1953]
GIFTS AFTER MARRIAGE
arguer de cette nullit6 pour refuser le paiement de sa dette”. A judgment to
the same effect was rendered in Boisseau-Picher v. Turgeon.39 The point is
that the debtor had no interest to oppose the transfer, since he had to pay the
debt once only, and it made no difference to him whether he paid it to the
husband or to the wife. The same principle was applied in Arsenault v. Hidle
La.urentide,40 where the husband, to whom a debt was owing, had the debtor
sign a promissory wife payable to his wife instead of to himself.
The classes of persons who can attack such transactions are limited to
three, as declared by Wurtele, J., in McLaren v. Merchants Bank,43: “The
third question is who can contest the transaction by which these sums were
placed in the wife’s name. Three classes of persons can do so: the husband
himself, his heirs or other representatives, and, if it was in fraud of their
rights, his creditors”. 42
In conclusion, mention should be made of the “donation of usufruct”, which
article 1265 declares to be abolished. This donation was a mutual right of
usufruct granted by the consorts to the one who would survive, over all or a
part of the property left by the other at his or her death. The introduction of
unlimited freedom of testamentary disposition of property rendered this
procedure obsolete long before the Code was enacted, and it now has only
a historical interest.
39(1938) 65 K.B. 87.
40[1949] S.C. 349.
42This holding was cited with approval by Bond, J., in Boisseau-Picher v. Turgeon,
above referred to, in which all the authorities are discussed. See also Nadeau v. Provost
(1917) 52 S.C. 387, at p. 389, where the same principle is applied.
