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The nullity of marriage in the province of Quebec

A marriage which is not solemnized according to the prescriptions of the law and the necessary conditions for its formal validity 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.

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.

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.

If the spouses were in bad faith, they each take back their property.

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.

Subject to article 386 of the Civil code, 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.

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.

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.

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.

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.

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.

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These documents are not legal opinions.

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