The Juridical Capacity of the Married Woman in Quebec:
In relation to partnership of acquests and
recent amendments to the Civil Code
Frances Schanfield Freedman*
[. INTRODUCTION
The intention of this article is to examine the juridical capacity
of the married woman in Quebec as it is today. The first part of it
is devoted to an examination of the new regime, partnership of
acquests, which in the absence of a marriage contract, regulates the
property rights of married people. In order to show how the leg-
islators of An Act respecting matrimonial regimes’ (hereinafter re-
ferred to as Bill 10), decided upon partnership of acquests as the
regime most suitable for the needs of Quebecers, this article includes
a small section on separation of property, the regime most in favour
with the population before 1970, and one on community of property,
the prior legal regime.
The latter part of this article deals with what is known as the
regime primaire, which governs all consorts irrespective of matri-
monial regime. As this regime regulates the married woman’s place
in the family with respect to her control over it (her power of re-
presentation, her contribution to the family expenses and her res-
ponsibility to third parties), it is most indicative, of her present
juridical capacity. Even though unaffected to a great extent by the
promulgation of Bill 10, it is a necessary inclusion in an examination
of the married woman’s juridical capacity today.
This article does not attempt to deal with the other changes
effected by Bill 10, such as the community of property regime which
after 1970 became a conventional regime and which has been
amended considerably to coincide with the new trend in legislation;
nor does it deal with mutability of regimes in contrast to the former
law which had prohibited any change to marriage contracts, nor
with the abolition of traditional prohibitions between husband and
wife. It does, however, consider on a small scale the application in
*B.A. (McGill); M.A. (U.deM.); B.C.L.III (McGill); Member of the Editorial
Board, McGill Law Journal, Volume 21. The writer wishes to express her
thanks to Professor Ethel Groffier Atala for her valuable guidance and
suggestions.
1 S.Q. 1969, c.77.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
the business world of the new trend in legislation with respect to the
married woman.
Before considering the first part of this article entitled the
“Creation of a New Legal Regime”, and its effect on the married
woman’s juridical capacity, a brief summary of some of the signi-
ficant facts which were catalytic to the new legislation is appropriate.
The fundamental idea of the married woman’s status in the
family before the implementation of change is reflected in the
original version of article 174 C.C.:
A husband owes protection to his wife; a wife obedience to her husband.
The marital authority of the husband was such that the jurispru-
dence did not hesitate to give it the disposition of public order, so
that any acts engaged in by the wife without his consent might be
subject to absolute nullity.2 The prevalent attitude is aptly stated in
Peloquin v. Cardinal:
Consid~rant qu’aux termes de
‘article 183 c.c., le ddfaut d’autorisation
du marl, dans les cas oh elle est requise, comporte une nullitd que rien ne
peut couvrir et que la cour est tenu d’en prendre connaissance en tout
6tat de cause.3
One of the earliest changes was effected in 1931, when upon the
recommendation of the Commission of Civil Rights of the Woman,
the married woman was given powers over her reserved property
(which constituted what she had acquired by her own work), by
articles 1425a-1425i C.C.4 Prior to 1931, this reserved property had
been subject to the husband’s administration because it was con-
sidered an asset of the community. This reform, according to Pro-
fessor Brierley, was “intended to prevent dissipation of such property
by the husband” and was “reserved to the entire administration and
enjoyment of the wife”.5 Henceforth, irrespective of matrimonial
regime, the married woman could enjoy greater legal capacity with
respect to her reserved property; she could alienate it onerously
and she could appear before the courts without authorization in any
action or contestation relating to her reserved property.” However,
this was the extent of the reform at this time. It still did not affect
the married woman’s general incapacity; the lack of authorization by
her husband constituted a nullity which nothing could cover.
2 B3audouin, Les rdformes de l’incapacitg de la femme marige (1952) 12
R.du. B. 214, 222.
3 (1894) 3 B.R. 10, 11 (emphasis added).
4 An Act to amend the Civil Code and the Code of Civil Procedure respecting
the civil rights of women, S.Q. 1930-31, c.101, s.27.
5 Brierley, “Husband and Wife in the Law of Quebec: a 1970 Conspectus”
in Mendes da Costa (ed.), Studies in Canadian Family Law (1972), vol.2, 795, 823.
6 Art.1425a C.C.
McGILL LAW JOURNAL
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In 1954, the married woman was removed from the company of
minors and interdicts by the modification of article 986 C.C., which
formerly read as follows:
Those legally incapable of contracting are:
Minors … ;
Interdicted persons;
Married women, except in the cases specified by law; …
Persons insane or suffering a temporary derangement of intellect …
or who by reason of weakeness of understanding are unable to give a
valid consent;
Persons who are affected by civil degradation.
However, even the addition to the Civil Code on December 16, 1954,
of article 986a –
“[tihe capacity of married women to contract, like
their capacity to appear in judicial proceedings, is determined by
law ‘ – – did not derogate from the fact that incapacity was still the
principle.
In short, it was not until Me Andr6 Nadeau became the president
of the Commission of Revision of the Civil Code in 1961, that the
juridical capacity of women became the object of a lengthy study
which in 1964 led to the enactment of An Act respecting the legal
capacity of married women,7 (hereinafter referred to as Bill 16), and
ultimately to Bill 10.
The intention of the legislators of Bill 16 was to make the married
woman capable, incapacity having been the rule up to that time;8
however, they only succeeded in proving that capacity does not mean
independence. Although they did proclaim the principle that the
legal capacity of the married woman is not diminished by marriage,
they could only do so with respect to the woman married under a
regime of seperation of property. The woman married under the
legal regime of community of property Could not be the equal of
her husband as the common patrimony was subject to his control.
With the realization that from community of property flowed the
suppression of the married woman’s full capacity came the awareness
that the legal regime must be altered. Thus, although it was originally
the aspiration of the legislators of Bill 16, the equality of the married
woman was not realized until the advent of Bill 10.
Bill 10 came into force on July 1, 1970. It reproduced the report
prepared by the Office of Revision of the Civil Code (hereinafter
referred to as O.R.C.C.), as well as certain amendments recommended
6a An Act to amend the Civil Code, S.Q. 1954-55, cA8, s3.
7 S.Q. 1963-64, c.66.
8Kirkland-Casgrain, La capacitg juridique de La femme maride dans le
Quibec (l’Office d’information et de publicit6 du Qu6bec, 1964).
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
by the Committee on the Administration of Justice. In his preface to
Les rigimes matrimoniaux prepared by the Quebec Government, Me
Choquette referred to Bill 10 as the most important modification
to the Quebec Civil Code since its inception in 1866, in that it ac-
corded complete emancipation to the married womanP
This in brief was the situation before 1970. The following section
of this article, the “Creation of a New Legal Regime”, will consider
those factors that most influenced the legislators to bypass the two
prevalent regimes, community of property and separation of pro-
perty, in their search for a suitable regime which was in accordance
with the new legislation and which would assure the married woman
equality in all areas. The intention of the Committee on Matrimonial
Regimes set up by the Office of Revision of the Civil Code (herein-
after called the Committee) is aptly stated in the following passage:
Cette rdforme doit s’organiser… h partir d’une reconnaissance expresse
du principe de la pleine capacit6 juridique de la femme maride. C’est
1h la premiere dtape k franchir. Une seconde 6tape sera la rdforine des
r6gimes matrimoniaux, 6tant donn6 la connexit6 qui existe entre
la
question de la capacit6 juridique de la femme marine et celle des
divers rdgimes matrirnoniaux.10
II. CREATION OF A NEW LEGAL REGIME
The legislators of Bill 10 sought to establish the juridical equality
of the partners in the marriage so that third parties need no longer
be wary of dealing with the wife, and so that both partners would
be assured of the independence of their patrimonies and a fair
partition of the accumulation of savings on dissolution of the
marriage. The aim of the authors was to establish a just regime by
recognizing the worth of the wife in monetary terms. It was felt
that years spent in the home, with no chance of entering the work
force, or advancing in her field if she already had a profession, or
accumulating savings from her work, should not deprive a woman
at the end of the marriage of the worth that she had brought to it:
… ce regime de la soci6t6 d’acqu~ts veut, sur le plan de la politique
legislative, traduire une certaine philosophie, une certaine conception du
mariage. I1 veut, dans le respect de l’ind~pendance des patrimoines, con-
sacrer le fait que dans la socidt6 conjugale, comme dans toute soci6t6,
l’apport des partenaires, pour 6tre diff6rent, n’en est pas moins reel. I1
veut dans un souci de justice, reconnaitre, d’une mani6re concrete, la
9 Choquette, Les r~giines matrimoniaux (Gouvernement du Qudbec, Service
d’information, 1970).
10 O.R.C.C., Report on the legal position of the married woman (1964), 4.
McGILL LAW JOURNAL
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participation effective de
‘6pouse h l’accumulation du patrimoine fami-
lial. I1 veut faire comprendre que ce qui est gagnd hors du foyer par l’un
des conjoints est gagn6 pour les deux.11
Thus in Quebec, couples are now free to make “[a]ll kinds of
agreements … even those which, in any other act inter vivos, would
be void”, subject to the rules of public order and good morals.12
They can have a notarial marriage contract drafted with any one of
a number of possibilities ranging from universal community of
property where the familial property is mingled into a common mass,
to separation of property where the patrimonies of husband and
wife are completely separate except for their respective contributions
for family support. Those who do not choose to regulate their own
matrimonial regime are subject to the legal regime:
The law does not determine the matrimonial regime except in’the absence
of special agreements by marriage contract. 13
In developing the legal regime of partnership of acquests as that
best able to meet the needs of married people in Quebec, the Com-
mittee took into consideration three possibilities: an adaptation of
community of property; separation of property (the regime most in
favour with the populace); and regimes in other countries.14
A. Community of Property
One important consideration in discarding community of pro-
perty as the legal regime was that it was no longer favoured by
the population. A survey undertaken by Me Roger Comtois showed
that over seventy per cent preferred separation of property.
In
their Explanatory Notes to Bill 10, the legislators commented on the
situation as follows:
It is inadmissible that the regime of the ordinary.law exist only for that
small number of persons who, through ignorance, error or imprudence,
did not formally or correctly repudiate it. As a matter of sound legislative
policy, the legal regime must not only represent a certain ideal, it must
also suit the majority.1
1 Crdpeau, “Les principes fondamentaux de la rdforme des regimes matri-
moniaux” in Lois nouvelles II (1970), 9, 17.
12 Arts.1257 and 1258 C.C.
13 Art.1260 C.C.
14 Supra, f.n.l1, 12; see also Baudouin, A propos de la rdforme des regimes
matrimoniaux en droit qudbdcois Partie II (1969) 71 R.du N. 279, 290.
15 Comtois, Traitd thiorique et pratique de la communautd de biens (1964),
317, para.371 et seq.
1’O.R.C.C., Explanatory Notes: An Act Respecting Matrimonial Regimes
(1970), Notary’s Handbook, vol.1, 6.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
1. Effects of Bill 16 on the Married Woman’s Juridical Capacity
The effects of Bill 16 on the wife in community of property were
ambivalent:
A married woman has full legal capacity as to her civil rights, subject only
to such restrictions as arise from her matrimonial regime.17
In analyzing the import of this article, Me Comtois concluded that
“la femme commune est capable mais elle n’a pas de pouvoirs”.18
She was bound by the organization of the regime rather than by the
principle of incapacity which was now uniquely an effect of the
regime. That this had dire consequences for the wife is well reflected
in the jurisprudence, according to Professor Francois H61eine:
On ne peut manquer toutefois de s’6tonner de constater l’importance que
certains juristes ont entendu donner i la restriction textuelle:
‘sous la
seule reserve des restrictions d6coulant du r6gime matrimonial’ qui per-
mettrait de limiter consid6rablement la portde de la r6forme.’1′
In Isaac Gelber v. Dame Fritschi a married woman under the com-
munity regime rented an apartment for herself while intending to
bring an action in separation from bed and board. Sued by the
bailiff for non-payment of rent she raised the question of her
capacity to oblige herself and to ester en justice. The judge considered
article 177 C.C.:
Bien que ce nouvel article, h prime abord, semble d6clarer que la capacit6
juridique de la femme mari6e sous tous les rdgimes est la r~gle et l’in-
capacitd, l’exception, ceci n’est vrai que pour … la femme s6par6e de
biens.20
Theoretically then, article 177 C.C. gave the wife the full right to
accomplish acts without marital or judicial authority, but she did
not have the power to do so because not only was the property of
the community affected, but also the private property of the consorts
was subjected to the charges du manage. She was thus divested of
power even with respect to her private property since the revenues
from this were a part of the community.
According to Me Comtois, had the legislators established that the
wife in community had full capacity to do all civil acts, but that the
community would not be obligated by these acts except in the
measure of profit that it would derive from them (as they had
established with respect to the business wife), then one could have
17 Former art.177 C.C.
18 Supra, f.n.10, 32.
19 H61eine, L’article 177 c.civ. ou la capacitg juridique de la femme maride
selon la loi qudbdcoise (1970) 1 R.G.D. 62, 65.
20 [1967] R.P. 416, 418.
McGILL LAW JOURNAL
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said that the wife was capable but that the community could not be
engaged without her husband’s consent.”
a) Improvements
Complete equality for the married woman may not have been
actualized by the legislators of Bill 16; nonetheless, they did succeed
in removing many obstacles to her capacity, notably the following:
A. Article 176 C.C. was repealed. This had stated that a married
woman could not appear in judicial proceedings without either
her husband or his authorization, even as a public trader. The
article had applied even if she was not in community of property.
After Bill 16 she could ester en justice with respect to all actions
pertaining to her personal moveable property.
B. The legislators repealed article 183 C.C. in which lack of authoriz-
ation by the husband to the “incapable” had constituted an
absolute nullity.
C. The legislators repealed article 1259 C.C. which had decreed that
the consorts could not derogate from the rights incident to the
authority of the husband over the person of the wife and
children, or belonging to him as the head of the conjugal associa-
tion.
D. Mention of the wife in article 1011 C.C. which had placed her
with minors and interdicts who had a right to be restituted,
was removed.
E. The necessity for a demand by the wife to seek authorization to
ester en justice with respect to her provisional residence in an
action for separation from bed and board disappeared, and she
only had to get her provisional residence approved.2
F. Before Bill 16, pecuniary condemnations incurred by the hus-
band alone could be recovered from the property of the com-
munity, while those of the wife could only be recovered out of
her property and only after the dissolution of the regime. Bill
16 permitted pecuniary condemnation incurred by either consort
to be exercised on the community.23
G. Since 1964, the married woman has been able to engage the
community without the consent of her husband and without
judicial authorization, but only to the extent of the amount of
benefit it derived. 4
21 Supra, f.n.33.
22 Former art.194 C.C.; see also Ouellette, Condition juridique de la femme
marige en droit quibdcois Partie II (1970) RJ.T. 189, 198.
23 Former art.1294 C.C.; supra, f.n.10, 43.
24 Former art.1296 C.C.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
H. Bill 16 accorded the wife the right to administer all her private
property although she was obliged to pour the revenues into
the community. Article 1297 C.C. gave her powers over her
private property analogous to those that her husband enjoyed
over the community property; she could exercisd all moveable
and possessory actions alone; she could alienate, sell or pledge
her moveable property other than business or household furni-
ture, although she still could not do the same with respect to her
immoveables unless she had her husband’s consent.
I. Before Bill 16, the husband was prohibited from disposing
gratuitously of immoveable property without his wife’s consent,
although he could do so with respect to moveable property.
After Bill 16, he could no longer dispose onerously of immove-
able property although he could so dispose of moveables other
than household furniture.2 5 Rossy v. Cinq-Mars et Dame Cahill
is indicative of this change. The husband sold moveables con-
sisting of household furniture to the plaintiff without his wife’s
consent, contrary to article 1292 C.C. He contended that since
his wife had left there was no longer a need for them. It was
held that the husband had no authority to sell these moveables
since the household had not been legally dissolved.2
J. After Bill 16, the husband could no longer burden an immoveable
with a real right nor agree to a conditional giving in payment of
an immoveable for a loan made without his wife’s consent.26a
However, it must be remembered that the husband still had the
power to oblige the community in general, since Bill 16 retained
that portion of article 1292 C.C. which stated that he alone
administered the property of the community.
K. With Bill 16, the wife became the representative of her husband
and was allowed to participate with him in ensuring the moral
and material control of the family.27 In Dame Lapierre v. T ot-
tier, in 1970, a wife asked for an alimentary pension without
resorting to an action in separation from bed and board, and
while continuing to live with her husband and children. Desaul-
niers J. said that prior to 1964 the jurisprudence would -have
refused such a request as striking a blow against marital au-
thority and paternal power and that it would constitute a trans-
fer of the administration of the property to the wife when this
power could only belong to the husband:
25 Former art.1292 C.C.
20 [1966] C.S. 423.
26a Former art.1292 C.C.
2TArt.174 C.C.
McGILL LAW JOURNAL
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… le Bill 16 a compl~tement chang6 la situation juridique des parties
dans la direction morale et matdrielle de la famille …. L’on doit donc con-
siddrer 1’6pouse et l’6poux comme des associds avec responsabilitds et des
droits 6gaux. Si 1’6pouse concourt avec le mar h assurer la direction mo-
rale et matdrielle de la famille, le tribunal doit lui fournir les moyens
n6cessaires pour exercer ce droit si le marl ndglige ou refuse de 1’exercer
lui-m~me.28
L. The married woman was given the power to represent her hus-
band for the current needs of the household.29 Thus the do-
mestic mandate she had enjoyed tacitly was legalized and the
courts began to validate acts that at one time were considered
forbidden. In Bouchard v. Lachance, a wife was permitted to
pay her husband’s debt because the payment was interpreted
as conforming to this mandate Similarly in Crescent Finance
v. Blackburn, an action against a husband was maintained with
respect to a loan which his wife had made which it was also
considered conformed to the mandate 3
M. Under article 183 C.C., the married woman acquired the right
to sell, alienate, hypothecate or pledge property with the author-
ization of a Superior Court judge, provided there was a necessity
to do so and provided her husband was unable to manifest his
consent because of incapacity, absence or unjustified refusal.3 2
However, again one must remember that the import of this
article was limited with respect to the wife in community; she
could not, even with this judicial authorization, alienate any-
thing other than the bare ownership of her own property since
the community could not be deprived of the .revenues of her
property without her husband’s consent. 3 However, the married
woman was no longer incapable, and where at one time the
absence of her husband’s authorization meant absolute nullity,
after Bill 16 the husband could subsequently ratify the contract
signed without his consent.
b) Disadvantages
In spite of the improvements in the community of property regime
effected by Bill 16, there were still some areas that it did not touch
on:
28 [1970) R.P. 309, 311.
29 Art.180 C.C.
30 [1967] R.L. 128.
Ml [1969] R.L. 185.
32 Baudouin, supra, f.n.14, 283.
:3 Supra, f.n.10, 44.
19753
JURIDICAL CAPACITY OF THE MARRIED WOMAN
A. A married woman could not be a tutor without her husband’s
consent and if she had been a tutor before marriage, the act of
marriage deprived her of her tutorship. 34
B. A married woman could not accept a succession without her
husband’s consent.35
C. A married woman needed her husband’s consent to make or
accept a gift inter vivos.36 Although according to article 643 C.C.
the wife in community could be authorized by a judge to accept
a succession, this did not imply that she could address herself
to the judge when her husband had refused to authorize her
acceptance of a donation.37
D. The married woman could not accept a testamentary executor-
ship without her husband’s consent.38
E. Article 1280 C.C. which had required the consent of the husband
in order for the community to be responsible for the debts of the
wife was not repealed. 39
F. Thi wife had no power over the private property of her hus-
band. She could not buy on credit without his consent, nor give
a general pledge on the community patrimony to a vendor. 9a
G. The wife could only act with respect to her share of the com-
munity property on the dissolution of the community. She could
not do so before because in the event that she renounced the
community, the immoveables would be deemed to have always
belonged to her husband. If she accepted the community she
was then bound to wait for the results of the partition.40
The fact that the entire community was subject to the husband’s
administration and benefited little from the 1964 law discouraged
people from choosing it as their matrimonial regime.4 A regime
where everything was bound into one patrimony could only portend
serious consequences if the husband fell into financial difficulty.
Coupled with the fact that once chosen, a regime could not be
changed (prior to 1970),41a many people opted for a marriage con-
34 Former arts.282 and 283 C.C.
35Former art.643 C.C.
36 Former art.763 C.C.
37 Supra, f.n.10, 44.
38 Art.906 C.C.
39The community had always been responsible for the debts of the husband.
39a This follows from former arts.1290, 1293, 1296, 1297 and 1298 C.C.
40 Supra, f.n.10, 39.
41 Even the reserved property, established in 1931, was of little help since
it pertained particularly to the working wife; supra, f.n.4.
41
a Former art.1260 C.C.
McGILL LAW JOURNAL
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tract outlining a separation of property regime with a donation by
the husband, and no subsequent subjugation.
B. Separation of Property
One of the reasons that the Committee considered making separa-
tion of property the legal regime was the fact that it seemed to be
so popular with the majority.41h The marriage would have no effect
on the patrimonies of the consorts: 42 both would have free ad-
ministration and disposition of their respective property43 and the
wife would be considered the equal of her husband, as was intended
by the legislators of Bill 16. It seemed simple.
But it was felt that the inherent qualities of separation of pro-
perty could be very dangerous for the wife and especially for the
housewife, since it gave her no claim on her husband’s savings. She
may have contributed in no small way to the family’s savings, and
yet because she earned no salary of her own she could not amass
her own patrimony. Donations by the husband to his wife which
were wholly discretionary before the marriage tended to compensate
her for those benefits she was relinquishing under a regime of
community of property, 44 i.e., her right to the common property. But
if separation of property became the legal regime, there would no
longer be any need to go before a notary to have a contract drafted,
and consequently there would no longer be the occasion to com-
pensate her.
Had the legislators been able to limit the husband’s freedom of
willing by means of a post-mortem alimentary obligation, separation
of property would have been feasible as a matrimonial regime.4
However, it would also have put an undue restriction on the husband,
who would have been prohibited from doing what he wanted with
his private property, a result which would have been antithetical
to the whole intent of the regime.
Furthermore, the apparent simplicity of the regime was an
illusion. Theoretically, it appeared that the two patrimonies could
be separated easily, but in practice it was not that simple. After
years of co-habitation and sharing, how could one easily separate
mutual objects? A notary summed up the situation to Me Comtois
41b Supra, f.n.15.
42 Art.1423 C.C.
43 Art.1422 C.C.
44 CoMtois, Pourquoi la socidtg d’acqu~ts? (1967) 27 R.du B. 602, 609.
4″ Supra, f.n.11, 15.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
as follows: “Nous sommes s~par6s de biens, mais nous avons tou-
jours vdcu en communaut6”; separation of property turned out to
be a community to which the partners were bound in spite of
themselves: 46
Le regime de s6paration conventionnelle de biens … “requiert en effet
la tenue d’une vdritable comptabilit6 durant tout le mariage malgr6 l’ab-
sence de masse commune afin de retracer le caract~re de biens propres,
notamment dans le domaine des biens mobiliers. En outre il est de notori-
t6 que bien souvent la femme abandonne en fait h son mar l’administra-
tion de ses biens personnels. 47
Thus, the two regimes most in use before 1970 were not adequate
to meet the needs of the people. As yet another alternative, the
legislators might have developed a regime of community with dif-
ferent rules, but this idea was also dispensed with since Quebecers
had already shown that they were completely opposed to relin-
quishing part of their juridical autonomy through marriage. What
the legislators wanted was. something different. In
their report,
the Committee stated as follows:
If it were possible to organize a matrimonial system which would, at the
same time, respect the autonomy, equality and independence of the two
consorts, and permit each to participate, at the dissolution of the regime,
in the gains realized in the course of its duration, would we not have a
standard formula achieving the desired objective and capable of rallying,
as it should, the support of the majority? These objectives are funda-
mentally reflected
in the proposed legal regime, the partnership of
acquests.48
Thus, the partnership of acquests was elected as the most ap-
propriate regime. Before considering its effects on the juridical
capacity of the married woman, it is appropriate to look at the
composition of the partnership of acquests.
C. Partnership of Acquests
1. Features Common to Separation of Property and Community
of Property
In many ways the essential advantages of both community of
property (the prior legal regime) and separation of property (the
most popular regime) have been incorporated into the partnership
of acquests, while the disadvantages of both have been discarded.4 ”
During marriage the partnership of acquests resembles separation
of property in that the notion of administration by the husband
40 Supra, f.n.44, 611.
47 Supra, f.n.32, 298.
48 O.R.C.C., Report on Matrimonial Regimes (1968), 7-8.
49 Supra, f.n.44, 605.
McGILL LAW JOURNAL
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disappears. The patrimonies of each consort remain distinct. Without
the need of consent from the other, each has the right to administer
his or her own property and participate in acts of borrowing; each
is wholly responsible for his or her own debts; each has the power
of disposition with the sole exception that neither, without the
agreement of the other, can dispose of his or her acquests gratui-
tously.50 This last provision is in recognition of the fact that on
dissolution of the regime each has a right to one half of the other’s
acquests. The Committee had no alternative but to restrict the
independence of the consorts in this area in order to ensure that one
partner did not dispose of acquests to which the other had the right
to one half at the end of the marriage.”
Partnership of acquests resembles the community regime in that
each consort has a right to an eventual partition of the acquests.
This right can be exercised not only at death, divorce, or separation
but also when a consort, although desirous of continuing the
marriage, requests that the regime be liquidated because the partner
is mismanaging the savings. The Minister of Justice in a speech on
December 2, 1969, expressed the philosophy of this regime in the
following terms:
II ece regime] veut exprimer, en effet, une rdalit6 profonde: Deux 6tres
qui s’unissent en mariage, participent au fil des jours, chacun Li sa mani-
re, de fagon diff6rente, a l’accumulation, a la sauvegarde et h l’accroisse-
ment du patrimoine familial. II parait alors juste et dquitable qu’au terme
de l’association conjugale, les conjoints puissent, en l’absence de conven-
tion expresse au contraire, partager en deux ce qu’ils ont acquis ensemble, 2
2. Composition of Partnership of Acquests
Whereas the prior legal regime, community of property, consisted
of only three patrimonies –
the private property of the husband,
that of the wife and the common property administered by the
husband –
the partnership of acquests consists of four patrimonies:
the acquests and private property of the husband and the acquests
and private property of the wife.
According to Professor Brierley, under the regime of partnership
of acquests each consort can participate in gains made during the
marriage by the other, whether by way of earnings, revenues, or
savings. However, the capital of property possessed before marriage,
or received freely during marriage, and property acquired by way
OArts.1266o and 1266p. C.C.
51 In the event that a partner does dispose gratuitously without the other’s
consent, an action in nullity can be taken under art.183 C.C.
52Ddbats de l’Assemblie nationale du Qudbec, 27 novembre, 1969, vol.8,
no.92, 4514.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
of investment or reinvestment, is kept by each consort as private
property.5 3
The acquests and private property are considered in much the
same way as they were under community of property. The partner-
ship of acquests consists of all the savings effected by the consorts
during marriage (regardless of their source), the fruits and revenues
of their private property and the proceeds of their personal work.
Had the acquests only consisted of the savings of the spouses’ earned
income, the wife would have been inadequately protected on the
dissolution of the marriage because of the principle of freedom of
willing. There would have been the difficulty also of distinguishing
between the savings from the revenues, those from personal pro-
perty and those from earned income. The expanded scope of these
acquests does not infringe on the control of the consorts over their
personal property, since it is only the proceeds of the fruits and
revenues which become part of the acquestsr14
According to Professor Brierley, “whether property is an acquest
or private property depends wholly on the time at which and the
title by which it is acquired”.; During the marriage there is little
need to know whether an object is an acquest or a private belonging,
except if one partner wants to make a donation of the acquests
‘ How-
inter vivos which is forbidden without the consort’s consent.
ever, at dissolution, the distinction becomes very important since
the partition includes only the acquests.
Because each consort would have no right over the other’s private
property, it was felt that the notion of acquests should be as en-
compassing as possible. Accordingly, article 1266d C.C. provides
that the acquests of each consort include all property not declared
to be private, article 1266m C.C. that all property is deemed to be
acquests, and article 1266n C.C. that property with respect to which
neither consort can establish exclusive ownership
is deemed to
be an acquest.
The propres are specific and are clearly itemized in article 1266e
C.C. They include all property whether moveable or immoveable
possessed before marriage, all property whether moveable or im-
moveable received during marriage by succession, legacy or donation,
as well as the fruits and revenues if the testator has so stipulated.
53 Supra, f.n.5, 837-838.
54 Tees, The Partnership of Acquests as the Proposed Legal Matrimonial
Property Regime of the Province of Quebec (1968) 14 McGillL.J. 113, 115.
55 Supra, f.n.5, 838.
56 Caparros, Chroniques de legislation: Loi concernant les regimes matrimo-
niaux (1970) 11 C.de D. 303, 306.
McGILL LAW JOURNAL
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This is in contrast to the former legal regime where all moveable
property acquired by will or donation automatically entered the
community and was subject to the husband’s authority unless the
donator or testator had expressed otherwise. The propres include as
well property that a consort may acquire in replacement of a private
property, clothing, personal effects, the amounts, rights, and other
benefits accruing to the consort as beneficiary under a contract or
plan of annuity, retirement pension or life insurance where he or
she has been nominally designated beneficiary by the other consort
or by a third person. They also include the right of the consort to
keep alimentary or invalid pensions. However, according to articles
1266h and 1266e C.C., the products and revenues of these will be
acquests.
Should one consort entrust the administration of his or her
property to the other, then the latter will be subject to the general
rules respecting the contract of mandate, under which the mandatary
is obliged to render an account except for fruits received, which will
be presumed to have been consumed for the needs of the household.
3. Effects of Dissolution
The dissolution of the partnership of acquests is effected through
the same causes as was the community of property: by the death of
one of the consorts, by absence as contemplated in articles 109 and
110 C.C., by a judgment granting a divorce or separation, by a con-
ventional change of regime, and by a judgment pronouncing a
separation of property 7 Both husband and wife can ask for a
judicial separation according to article 1440 C.C.
Founded on the basis that each consort has a right to one half
of the acquests of the other, there is no intermingling of the patri-
monies during the marriage. 8 In the event that one patrimony has
been enriched at the expense of the other, a system of compensation
has been worked out so that at the end of the regime any imbalance
between the private property and the acquests is corrected by means
of compensation. 59 A consort may have made improvements to an
immoveable which belongs to him as private property, by using
funds from ]iis acquests. Therefore the mass of private property
would owe 9ompensation to the mass of acquests.6 According to
Me Comtois, this system of compensation is no more complicated
57 Art.1266r C.C.
58 Supra, f.n.5, 837.
59 Supra, f.n.56, 307.
6 0Baudouin, supra, f.n.14, 298.
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JURIDICAL CAPACITY OF THE MARRIED WOMAN
than the one in the prior regime of community of property; the
acquests will normally be in the name of the husband, and the wife
can renounce or accept.61
Upon dissolution, a list is made of all the property, and the
private property is separated from the acquests. Each keeps his or
her private property, the partner having no right in it. This procedure
is facilitated by the presumption of acquests; unless a consort can
prove that something is a private belonging, then it is deemed to
be an acquest.ola Once the private property and the acquests have
been separated, compensation, if any is due, is effected.
Each consort has the right to accept or renounce the partition of
acquests of the partner, any agreement to the contrary being null.
The authors of the draft were hesitant before deciding on this right
of renunciation because of their recommendation elsewhere that a
consort cannot be held liable for the debts of the partner over and
above the benefit derived. 2 In spite of this, however, they felt that
under certain circumstances the right of renunciation would simplify
the liquidation procedure.
Once the option to accept or renounce has been made, it is
irrevocable.P Therefore, the different possibilities must be clearly
understood and for this reason a delay of one year from the time
of dissolution is allowed; at the expiration of which the partner is
deemed to have accepted it. The renunciation must be made by
notarial deed en minute or by judicial declaration which is recorded
by the court. Registration is effected in the offices of the registration
division where the conjugal domicile is situated.4
According to article 624c C.C., as amended by Bill 10, the surviving
consort cannot at the same time be both heir and have rights in the
partnership of acquests as well. Therefore, he or she can either
accept the rights in the partnership of acquests and have no rights
in the succession, or accept the succession and renounce the partner-
ship of acquests, thereby bringing that part of it into the succession
of the de cujus. Should the husband or wife under the present legal
regime die ab intestat, the surviving partner cannot be heir unless
he or she renounces all rights in the regime.
The different possibilities with respect to article 624c C.C. which
the survivor would have to consider before deciding whether to
61 Supra, f.n.44, 613.
Gla Art.1266m C.C.
02 Supra, f.nA8, 42.
63 Art.1266x C.C.
04Supra, f.nA8, 42.
McGILL LAW JOURNAL
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accept or renounce have been outlined by Professor Germain Bri~re 10
If a husband dies intestate leaving a wife and children, the wife
can either accept the partition of her husband’s acquests or re-
nounce. If she accepts, then her children, being the heirs of their
father, can ask for the partition of their mother’s acquests or re-
nounce. If they accept the partition of her acquests then they will
be entitled to the property of the father (which the wife has
renounced as heir by accepting the partition of his acquests), one
half of his acquests, and one half of their mother’s acquests; the
wife will have one half of her own acquests and one half of his.
If the children renounce their mother’s acquests, they will have their
father’s property and one half of his acquests, while their mother
will have all of her acquests and one half of her husband’s. If the
wife renounces her husband’s acquests in order to succeed to his
estate, again the children can ask for or renounce the partition of
their mother’s acquests. If they accept the partition of her acquests,
Professor Bri~re is of the opinion that the succession will then
consist of the husband’s private property, all of his acquests and one
half of their mother’s acquests, and will be divided in the propor-
tions of one third to the wife and two thirds to the children. ‘
Mayrand J. is of a different opinion and feels that if the wife
wishes to succeed to her husband’s estate, and should the children
decide to accept the partition of their mother’s acquests, the suc-
cession will then consist of the husband’s private property, all of his
acquests and all of the wife’s acquests. He contends that the wife
must return all of her own acquests because her rights are exercised
on all of the acquests, her own and those of her husband. G There is
no difference of opinion between Professor Bri~re and Mayrand J.
with regard to the children’s renunciation of the partition of their
mother’s acquests. In this case, the wife can succeed to the estate
of her husband and still retain all of her acquests. The succession
will be composed of all the husband’s private property and acquests
of which one third would go to the wife and two thirds to the
children. As these combinations of possibilities lead to different
results, it is obviously most important that the survivor understand
them fully.
Should the consort renounce in order to avoid paying debts for
which the acquests are liable, or in order to defraud creditors, in
the former case “the share of the acquests to which he would have
65 Bri~re, “Les dispositions essentielles du bill 10 sur les regimes matrimo-
niaux” in Lois nouvelles II (1970), 23, 28.
65a Ibid., 29.
66 Mayrand, Les successions ab intestat (1971), 135-136.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
been entitled remains vested in the consort owner”, 7 and in the
latter case “la renonciation n’est annul6e qu’en faveur des cr6anciers
h concurrence de leurs cr~ances”.0 s
4. The Capacity of the Married Women under Partnership
of Acquests
Having considered the relevant features of the partnership of
acquests, it is now appropriate to ask whether the juridical capacity
of the married woman is complete under this regime.
As we have seen, the legislators of Bill 10 intended to give each
consort complete juridical capacity and with it the corresponding
power to act.0 9 All the dispositions of the Civil Code with respect
to the capacity of the husband and wife were accordingly revised
with a view to giving the consorts the right to make all kinds of
transactions without third parties being put into doubt with respect
to the power of one of the contractants. By its very composition
and philosophy the partnership of acquests is antithetical to the
subordination of the wife.
Today, we can say that the juridical capacity of each consort is
the same under the partnership of acquests; the Civil Code in this
area does not distinguish between husband and wife. Whatever the
husband can do contractually, the wife can do. There is no longer
a head of the family overseeing the community because there is no
longer a community.
Accordingly, the patrimonies of each remain distinct; each can
administer his or her own property, each can participate in acts of
borrowing and each is entirely responsible for his or her debts,
no consent being required from the other. Each has the power of
disposition with the sole exception that neither, without the con-
currence of the other, can dispose of his or her acquests gratuitously,
because each, as we have seen, has a right to the eventual partition
of the acquests and a right to one half of the partner’s acquests.
Furthermore, according to Me Comtois, “malgr6 certaines hdsita-
tions et certaines rdticences, il semble que les banques, les compa-
gnies, institutions et maisons d’affaires acceptent plus facilement
de transiger avec la femme, sous sa seule signature”.7 It would
seem therefore that under the partnership of acquests the juridical
capacity of the married woman is such that she is now equal to her
husband.
67 Supra, f.n.5, 839.
68 Baudouin, supra, f.n.14, 300.
69 Comtois, Le bill 10 depuis le premier juillet 1970 (1970) 1 R.G.D. 220, 222.
70 Ibid., 223.
McGILL LAW JOURNAL
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At this point, it is appropriate to consider those articles in the
Civil Code which do not pertain to the partnership of acquests as
such, but which are common to all consorts irrespective of matri-
monial regime.
III. ARTICLES OF THE CIVIL CODE PERTAINING TO THE
THE MARRIED WOMAN’S JURIDICIAL CAPACITY
IRRESPECTIVE OF MATRIMONIAL REGIME
W~e have seen that under the regime of partnership of acquests,
the married woman is textually the equal of her husband. However,
other articles, affecting all consorts, appear to be contrary to this
equality.
To consider the situation, the following section has been divided
into three sub-sections: The first two deal respectively with articles
that have been repealed and amended; each of these sections also
contains a summary of the evolution of the more significant articles.
The third sub-section deals with articles 173 to 184 C.C., the r~gime
primaire. For purposes of comparison, this last subsection also
includes an examination of the charges du manage as they are
outlined in the Civil Code, both in the former legal regime and in the
present one.
A. Repealed Articles
Some articles were repealed by Bill 10 because their provisions
had become self-evident:
1. An example is article 832 C.C. Under Bill 16, the married woman
had acquired the right to make a will, If Bill 10 made her equal
to her husband, then it was no longer necessary to state that
she could do so.
2. Similarly, article 906 C.C. which had provided that “a married
woman common as to property cannot accept testamentary
executorship without her husband’s consent” was not repro-
duced in recognition of the fact that she now had full capacity.
3. Article 181 C.C. which provided that a married woman could
exercise a trade or profession separate from that of her husband
was also repealed. The original article 179 C.C. had provided that
a married woman could not become a public trader without the
express or presumed authorization of her husband. In Dame
Langstaff v. The Bar of the Province of Quebec, it was held that
a married woman could neither be admitted to the practice of
law nor as a member of the Bar without the authorization of
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
her husband or a judge.71 If for one of the reasons set out in
the original article 180 C.C. (the husband being interdicted or
unable to make his will known within the requisite time,
through absence or otherwise), the husband did not authorize
her to be a public trader, then the judge could do so, but in this
case she did not bind the community.”2 If the husband did
authorize her, then she not only obligated herself but him as
well if they were under the regime of community of property.
In Gendron v. Dame Livesque”3 it was held that former articles
1425a C.C. and following did not -discard the dispositions of
article 179 C.C., which provided that the wife, if she was a
public trader, could oblige herself for all that concerned her
business without her husband’s consent if they were in com-
munity of property and if he had authorized her to be a public
trader.
The legislative changes of 193 173a did not affect the juridical
capacity of the wife who was a public trader. If she was under
community of property she could not appear in legal proceedings
without her husband or his authorization. 74 In time, however, the
married woman acquired full powers over the fruits of her work –
the biens r6servds –
powers greater in fact than the husband had
over the common property. She did not need his agreement except to
dispose gratuitously; she could engage the community (of which
remuneration from her husband’s work formed part) through the
exercise of her trade, while the husband could not engage her biens
rdservds by his professional activities.”
In addition, her property
was protected in that creditors of the husband could not pay them-
selves from it unless they were dealing with debts contracted in the
interest of the home. By Bill 16, the married woman was given the
right to engage in a calling distinct from that of her husband.76 No
longer did she require his authorization, his refusal having no
juridical import. However, he could oppose her exercise of a trade,
but only under the regime of community of property, since it was
71 (1915) 47 C.S. 131.
72 With respect to former art.176 C.C., the right of the wife who was a Public
trader to appear in legal proceedings without her husband’s authorization
only referred to actions pertaining to her reserved property; former arts.1425a
and 1425g C.C.
73 [1955] C.S. 412.
73a An Act to amend the Civil Code and the Code of Civil Procedure res-
pecting the civil rights of women, S.Q. 1930-31, c.101.
74 O.R.C.C., Report on the Legal Position of the Married Woman (1964), 15.
75 Supra, f.n.10, 34.
7 6 Former art.181 C.C.
McGILL LAW JOURNAL
[Vol. 21
only under that regime that she could render property in which he
had an interest liable for the debts of her trade. This opposition did
not stop her from exercising her trade, but it meant that her agree-
ments were not opposable to her husband.”7 If the husband did
oppose it then he was bound to deposit a notice, as required by
former article 182 C.C., that his wife did not have his consent and in
this case the liability of the community property was limited to the
extent that it benefited from such exercise. His opposition was
deemed known to third parties with whom she contracted by the
deposition in the court of this declaration that she lacked his consent.
However, as Professor Brierley points out, in the event that it was
shown that the husband’s refusal was unjustified in the family
interest, no provision had been made to lift that opposition. Thus
only if the married woman had either her husband’s express or
implied consent or judicial authorization did she obligate the com-
munity for all that related to such trade.78
B. Amended Articles
Some articles were amended by Bill 10 so that the intention of
the Bill 16 legislators to remove the incapacity of married women
could be reinforced.
1. Article 643 C.C. had included married women in community with
interdicts and minors, as being unable to accept a succession
without the consent of their husbands. This was amended so that
married women were excluded.
2. Originally article 176 C.C. had provided that amarried woman
could not appear in legal proceedings even as a public trader.
She could, however, appear in judicial proceedings or make a
deed when her husband refused his consent if she had a judicial
mandate. 79 Her right to appear before the courts without author-
ization at this time only pertained to her reserved property. 0
Bill 16 introduced article 177 C.C. in place of article 176 C.C.
It provided that a married woman had full legal capacity with
respect to her civil rights, subject only to restrictions arising
from her matrimonial regime, capacity being one thing and
matrimonial regime another. However, because the interpreta-
tion of this article was such that it seemed that her capacity
C.de D. 366, 374.
77 Beausoleil, C6t, Delaney, La Femme marige commergante (1965-66) 7
78Former art.182 C.C.; see also, supra, f.n.5, 816.
79 This judicial mandate was not retained under Bill 10.
80 Art.1425g C.C.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
was restricted rather than her power, it was amended by the
drafters of Bill 10 so that the distinction between capacity and
powers was clear. The present article 177 C.C. accordingly reads
as follows:
The legal capacity of each of the consorts is not diminished by marriage.
Only their powers can be limited by the matrimonial regime.
From her inability to ester en justice without her husband’s
consent, under Bill 16 the married woman advanced to the stage
of being able to address the judge to obtain judicial authorization
with respect to sale, alienation, hypothec or pledge: 8
l’autorisation de justice remplacera le consentement de I’6poux r6cal-
…
citrant, lorsqu’il aura 6t6 prouv6 que le simple refus de ce dernier est
contraire h l’intdr~t de la famille.82
There had been uncertainty with respect to this; whenever a consort
did something without the concurrence of the partner, the conse-
quences were in doubt whether to dissolve the community, attack
the act or ask for a judicial separation of property.
Therefore, with respect to acts necessitating concurrence, the
legislators of Bill 10 decided that the principle of equality of the
powers of the consorts had to be sanctioned by a text allowing the
partner whose concurrence was required but not given, to have the
operation annulled without awaiting the dissolution of the regime.8 3
Accordingly, article 183 C.C. provides:
If one of the consorts has exceeded his powers over the property of the
community, over his private property or his acquests, the other, unless
he has ratified the act, may ask for its annulment.
By Bill 10, the married woman may be judicially authorized to
enter alone into an act which would ordinarily require her husband’s
concurrence, if this cannot be obtained for one of the reasons out-
lined in article 182 C.C. For example, should one consort wish to
dispose of his or her acquests gratuitously and be unable to obtain
the consent of the other, it can be accomplished through the author-
ization of a Superior Court judge, with the proviso that it be shown
that the donation is in the interests of the family.4 Should a consort
dispose of his or her acquests gratuitously without the agreement of
the partner, the latter can demand annulment.8 5 This is a relative
81 Former art.183 C.C.
82Pineau, L’autoritd dans la famille (1965-66) 7 C.de D. 201, 206.
83 Supra, f.n.16, 19.
84 Pineau, L’Vdlaboration d’une politique g6ndrale en mati~re matrimoniale
(1971) 74 R.duN. 3, 17.
85 Ibid., 20.
McGILL LAW JOURNAL
[Vol. 21
nullity,88 the action being open during two years from the date that
the partner learned of the act. The consort whose consent is replaced
by that of the judge although not able to contest the act passed,
will not be bound by a personal obligation, as he or she will not
possess the quality of contractantY7
Thus, as the foregoing shows, the legislators attempted to eradi-
cate any doubt that the juridical capacity of the married woman was
not the same as that of her husband.
C. Articles 173 to 184 C.C.
This section deals with articles 173 to 184 C.C. which are re-
ferred to by the authors7a as the regime primaire. The rigime pri-
maire, which governs the responsibilities of the consorts to each
other, to the family and to third parties, applies to all consorts by the
sole act of marriage, irrespective of matrimonial regime. Me Caparros
says this about the rdgime primaire:
… ce regime primaire va donc 6tablir le minimum des conditions dcono-
miques sans lesquelles le mdnage ne pourrait pas s’6panouir; il garantit
h la fois aux tiers un minimum de sdcurit6 et
chacun des 6poux une
ind6pendance doublde de la solidaritd ndcessaire.88
The legislators of Bill 10 did not concentrate on the regime primaire,
much to the concern of some authors who were of the opinion that
certain reforms should have been introduced, aimed at establishing
an imperative rgimne primaire, which would protect the family. The
concurrence of both consorts would be required with respect to
important acts concerning the family, and economic relations both
between the consorts themselves and in their dealings with third
parties would be facilitated.”9
A decided contradiction arises when the articles pertaining to
the regime primaire are read together with the articles outlining
the responsibilities of each consort to the household expenses, both
in the prior and the present legal regime. Before considering what
the married woman’s juridical capacity is under the regime primaire,
a consideration of the responsibilities of each consort to the house-
hold expenses as they are set out in the Civil Code is in order.
86 Art.183 C.C.
s7Supra, f.n.84, 18.
87a E.g., Caparros, Remarques sur le bill 10, loi concernant les rdgimes ma-
trimoniaux (1969) 10 C.de D. 493; Brierley, supra, f.n.5.
88 Caparros, ibid., 497.
89Ibid., see also, supra, f.n.5, 843.
1975″1
JURIDICAL CAPACITY OF THE MARRIED WOMAN
1. Interpretation of “Charges du manage”
The charges of the marriage or expenses of the household are
referred to in article 1280 C.C. and article 1423 C.C Although in
general undefined, article 1280 C.C. gives an indication of what they
involve. According to Professor Germain BrRre, the charges of the
marriage can be divided into three parts:
(i) Les frais d’aliments, … il s’agit des d6penses du ‘manage’, d~penses
occasionn6es par la vie commune des 6poux, qui leur permettent de
vivre suivant leur 6tat et leur rang social; ce sont non seulement
les frais de nourriture proprement dit mais aussi les frais de v~te-
ments, les frais de maladie … les frais de logement … et en gdn~ral
les d~penses de tout proc~s concernant la personne de Fun ou 1’au-
tre des dpoux.
(ii) Les frais d’aliments, d’entretien et d’6ducation des enfants …
(iii)
… des d6penses qui, sans 6tre ndcessaires A 1’existence, contribuent
au bien-6tre des deux 6poux, … les frais d’am6nagement de la r&
sidence familiale et du chalet, les gages des domestiques, … les
frais” de voyage et ce qu’on appelle dans le langage courant ‘les
petites ddpenses’. 91
a) “Charges du manage” under Community of Property
Under the prior legal regime, the common mass supported the
charges of marriage 9 2 although at times the wife might be obliged
to contribute her reserved property 3 According to Professor Briire,
“[o]n a donc pu dire que la mise en commun des revenus rdalise
automatiquement la contribution des 6poux aux frais de la vie com-
mune”. 4 In the event that debts were contracted in the interest of
the household (which were not necessarily the same as those of the
charges of marriage), they, including those incurred by the husband,
could be claimed against the reserved property 5 This is illustrated
in Dame Bundock v. Potvin.90 The wife, after letting her husband
manage her reserved property for three years, asked for repayment.
The court decided that by this tacit mandate the wife had left the
fruits and revenues of her work to her husband to defray the costs.
With respect to the former article 1301 C.C. the wife could not
oblige herself with or for her husband except in a common quality
and she could in no way be held personally liable. In Hudon v.
Marceau, Dorion J. says this:
90 Repealed by S.Q. 1969, c.77, s.85.
91 Bri~re, Les charges du mariage (1967) 2 R.J.T. 451, 452453.
9 2 Former art.1280 C.C.
93 Former art.1425h C.C.
94 Supra, f.n.91, 455.
95 Art.1425e C.C.
96 (1940) 78 C.S. 238.
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… lorsque la femme commune en biens ach~te des fournitures pour les
besoins de la famille, elle le fait au nom du mar et pour la communautd,
et qu’elle n’encourre aucune responsabilitd personnelle, puis qu’elle ne peut
s’obliger pour ou avec son mar qu’en qualitd de commune…. En accep-
tant la communaut6, elle ne devient personnellement tenue que pour sa
proportion dans la communaut6, et elle ne peut 6tre poursuivie pour la
proportion dont elle peut 6tre tenue, qu’apr~s la dissolution de la com-
munaut6.97
Similarly in Canadian Pacific Railway v. Dame Kelly where both a
husband and wife, who were in community of property, were sued on
a promissory note signed by the two of them, the action was held
against the husband but dropped against the wife:
–
il est aujourd’hui unanimement admis que m~me si la femme agit per-
sonnellement, et ach~te les ndcessitds de la vie pour les besoins du m6na-
ge, elle est consid~rde comme mandataire de son mar, et ne peut 8tre tenue
personnellement responsable. C’est une dette de la communautd pour la-
quelle seul le mari pourra Ptre recherchd … . II en est responsable “ex
contractu” vis-a-vis l’appellante, et il le serait dgalement si c’eut 6t6 sa
femme agissant comme son mandataire, qui 1’eut contractde. Il s’agit d’une
n6cessit6 de la vie dont la femme commune n’est pas responsable meme si
elle en a profit6 … . Le billet signd conjointement et solidairement par
les deux d6fendeurs n’est qu’une reconnaissance de cette dette, et n’a
pas op~rd de novation. En la signant, a la demande de son mar, Mme
Kelly s’est “oblig6e pour ou avec son mar” pour une dette de ce dernier,
et comme le constate une jurisprudence uniforme, son acte est frapp6 de
nullit6 absolue, comme 6tant une violation de l’article 1301 C.C. qui est
d’ordre public.9 8
The wife in community could not be pursued during the existence
of the community; once the community was dissolved, the creditors
had no recourse against her unless she had accepted the community 90
She was therefore in a position whereby she could keep her reserved
property, and renounce the community at its dissolution, thus freeing
herself without exception of all responsibility toward the debts of
the community.
b) “Charges du m6nage” under Partnership of Acquests
The situation of the married woman under partnership of
acquests with respect to the charges du mdnage is similar to that of
her situation under separation of property. In fact, the rules of
separation of property'”0 were incorporated into article 1266q C.C.:
The consorts contribute to the expenses of the household in proportion
to their respective means. Failing an agreement between them, the court
may, on motion, fix their contributory portions.
97 (1878) 23 L.CJ. 45, 48.
98 (1952) 1 S.C.R. 521, 536-537.
99 Supra, f.n.91, 463.
10 0 Art.1423 C.C.
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JURIDICAL CAPACITY OF THE MARRIED WOMAN
Because there is no common mass of property in this regime,
and because each consort has freely contracted the obligation that
involves only him or her, each is personally responsible. Article
1266p C.C. provides that each consort is liable for all debts that arise
before or during the marriage on all his or her private property
and acquests. Neither partner is responsible during the regime for
the other’s debts – with the exception of the wife representing her
husband for the current needs of the household.’00 a
At the end of the regime, not only tan the dissolution not
prejudice the rights of the creditors, but the partition enables the
creditors to exercise a recourse. Article 1267d C.C. provides that
anterior creditors can conserve their recourse before the partition
on the entire patrimony of their debtor, and after the partition,
they can pursue “the consort who is their debtor, or his successors
and also his spouse, or the latter’s successors, but only to the extent
of the benefit such spouse or successors derived from it”.'” Each
consort keeps a recourse against the other for one half the sums
he or she had to pay. 2 According to Professor Brierley, article 1267d
C.C. provides that after the acquests are divided, “the consorts re-
main jointly and severally liable to creditors for any unpaid debts
but, as between themselves, each is only liable for one-half, but only
to the extent that such consort or his successor derived any benefit
therefrom”. 0 3 Should a consort renounce the partition of acquests
in order to defraud his creditors, the latter can attack this renun-
ciation which would then be annulled in favor of the creditors to
the amount of their credit.’ 4
Now that we have considered the responsibilities of each consort
to the household expenses, we are in a position to examine how
article 176 C.C. has been interpreted.
2. Interpretation of Article 176 C.C.
In contrast to the clarity with which the responsibilities of each
consort toward the household expenses and debts are defined, article
176 C.C. is incongruent and seems to conflict with the Bill 10
legislators’ intentions of equality.
lo0a Art.12 66p.
101 The benefit of gain is not subordinated to the condition that an inventory
be made as in community; art.1370 C.C.
‘0 2 Art.1267d C.C.
103 Supra, f.n.5, 840; see also, supra, f.nA8, 50.
104 Art.1266v C.C.; see also, supra, f.n.2, 300.
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While article 173 C.C. provides that husband and wife mutually
owe each other fidelity, succor and assistance (succor being the duty
of the consort “having means” to provide for the other),105 according
to article 176 C.C. which was unchanged by the legislators of Bill 10,
it is the husband who must supply the wife with the necessities of
life according to his means and condition, a duty which has even
been enforced in de facto separations. There is an abundance of
jurisprudence with respect to this.
In D’Anna v. Corbeil, it was held that the husband was responsible
for the payment of medical care furnished to his wife but within
the limit of his resources:
… les 6poux se doivent mutuellement secours et assistance, et que vis-h-
vis des tiers le marl est responsable pour les choses ndcessaires h vie
de son 6pouse, m~me quand les torts sont de son c6td … le marl ne peut
6tre tenu h payer que suivant ses moyens et le compte du demandeur de-
vrait 6tre rdduit en consdquence ….106
Similarly in Larocque v. Pilon, a husband was held responsible, even
though separated from his wife, for furnishing her with medical
attention which he had not authorized. 10 7
The question has been raised whether, in the event of the
husband’s insolvency, the wife would have the obligation of succor.
It is interesting to note that as early as 1877, it was decided that if
the husband was without means the creditors could pursue the wife
for the payment of debts created after the bankruptcy of her hus-
band.1 08 According to Professor F. Hdleine, when a husband is in-
solvent, jurisprudence has tended to make his wife responsible,
reclaiming from her the payment of the household debts “dans la
mesure de sa part contributive aux charges du mdnage”.10
Under the old legislation the husband’s duty to supply his wife
was an object of judicial consideration which in the process evolved
the usage of various terms. In Pepin v. De La Chevroti~re, it was
decided that “[u]ne femme commune en biens peut engager la com-
munaut6, en vertu d’un mandat tacite qui lui est donnd par le maril,
pour toutes les choses n~cessaires & la vie…”.”” In Lefebvre v.
Labontd, it was held that a head of a family earning little was only
responsible for the ncessitds du minage.”‘ In Gratton v. Hermann,
105 Supra, f.n.5, 811.
109 [1944] C.S. 400.
107 [1963] C.S. 298.
108 McGibbon v. Morse (1877) 21 L.C.J. 311.
109 H61eine, Chronique de droit familial: rapports personnels entre 9poux
(1971) 2 R.G.D. 40, 41.
110 [1959] C.S. 603, 610 (emphasis added).
111 [1944] C.S. 256.
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JURIDICAL CAPACITY OF THE MARRIED WOMAN
it was said that “. . . la jurisprudence admet au profit de la femme un
pouvoir de reprdsentation du mari pour toutes les ddpenses du mi-
2
nage”.11
The courts tended to consider the financial and social status of
the parties in determining whether something should be a chose
ndcessaire & la vie. If the wife made extravagant purchases having
regard to the resources of her husband and exceeded the limits of
her mandate, one would no longer be dealing with a charge du
mariage.”3 In Brown & Co. v. Marlowe, objets de luxe were sold
to the wife who was under a regime of community of property. The
husband who knew nothing of these purchases had eleven children
and earned $140 per month. It was held that “…
la vente de toi-
… n’est pas proportionnde h ses
lettes pour une somme de $179.17
revenus, sa condition sociale et son 6tat de fortune …-… Where
it was recognized that the husband had considerable means and that
“the good life” was a normal part of their modus vivendi, the hus-
band was generally held responsible for his wife’s entire account. In
Gratton v. Dorfman, the husband was held liable for his wife’s ac-
count of $231 for a three day holiday in a Laurentian hotel:
Consid6rant que r’article [175 C.C.] 6dicte, … que le mar est obligd
de recevoir sa femme et de lui fournir tout ce qui est ndcessaire pour
les besoins de la vie selon ses facultds et son dtat;
Considdrant que les vacances, les distractions et m6me certaines d6penses
faites pour recevoir parents et amis font partie des besoins de la vie
et que le mart est tenu de les procurer h son 6pouse dans les limites
de ses moyens et selon son dtat et sa position sociale.115
In Pepin v. De La Chevroti~re, it was held that “[d]ans notre
province, l’achat d’un manteau de fourrure [de $450] doit 8tre ordi-
nairement considdr6 comme une chose ndcessaire h la vie”,””
whereas in M. Shuchat Fur Co. Ltd. v. Pariseault, because the wife
had purchased a Persian lamb fur coat seven months earlier with
her husband’s consent, her subsequent purchase of a mink coat
without his consent “ne constituait pas une ndcessit6 de la vie”.117
In Baron v. Court it was decided that a wife separated de facto
could not buy luxury items without her husband’s consent.” 8
The husband was not permitted to ‘fix the level below that of
112 (1931) 69 C.S. 479, 480 (emphasis added).
113 Supra, f.n.91, 461.
114 [1944] C.S. 61, 63.
115 [1960) C.S. 457, 458.
116 Supra, f.n.110, 611.
117 [1972] CA. 138, 139.
118 (1939) 77 C.S. 428.
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couples in the same social situation. In Dame Moquin v. Charron,
it was said that “[1]e d6fendeur agit tr~s imprudemment en restrei-
gnant ses contributions aux n6cessitds domestiques et aux besoins
personnels de sa femme, dans des proportions incompatibles avec
son dtat de fortune”.119
If the wife was refused credit, she could ask for a separation.
If they separated the husband had to support her in the same life
style as that maintained during the marriage: 120
En vertu de l’article 175 C.C., le man est oblig6 de fournir t son 6pouse
tout ce qui est ndcessaire pour les besoins de la vie, selon ses facultds
et son 6tat. L’action en separation de corps ne met pas fin &t cette obli-
gation … c’est pourquoi le ldgislateur entend que, pendant l’instance,
subsiste entre les 6poux, quant A l’obligation alimentaire du marl et compte
tenu des circonstances prdsentes, un dquilibre proportionn6 aux con-
ditions de vie antdrieures des 6poux.121
The intention of the legislators of Bill 10 was to require each
consort to contribute to the cost of the necessities of life of the
family in proportion to his or her respective means. Article 176 C.C.,
however, seemed to be antithetical to the spirit of the new law that
there be no conjugal head, because the wife did not have an obliga-
tion similar to that of the husband. If the wife was in fact equal to
her husband, why should the husband be obliged to supply her with
the necessities of life but not vice versa? When the husband was the
titular head of the family it was natural that he had the ensuing
responsibilities. Now the title of head had been suppressed, but the
function still remained, the wife benefiting in a way detrimental to
her capacity if not to her ease.
Professor Ouellette-Lauzon is of the opinion that both partners
should be responsible jointly, and that if the wife wants equality, she
should bear the consequences. If this were to happen, she believes
that the power of unilateral revocation by the husband would dis-
appear.1 22
Similarly, Me Pineau states that since each consort now has
complete control of his or her patrimony, then it is only right that
each should be responsible for his or her own debts. Since both
consorts are now obliged to contribute to the expenses of the house-
hold in proportion to their respective means, what is needed is not
119 [1968] B.R. 16, 19 (emphasis added).
120 Supra, f.n.109, 111.
2 1 Deyglun v. Dame Boucher [1968] B.R. 138.
1
122 Ouellette-Lauzon, Le mandat domestique ou “Du pouvoir des clefs” Partie
II (1972) 75 R.du N. 154, 171.
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JURIDICAL CAPACITY OF THE MARRIED WOMAN
representation but solidarity 23 Since the repeal of article 1301 C.C.
(by Bill 10), which had provided that a wife could not bind herself
any such obligation … is void
either with or for her husband (“….
and of no effect…”), there now is a possibility of solidarity of both
spouses to a debt mdnager.124
3. Mandate
An examination of the legal mandate created in article 180 C.C.
shows how the notion of equality between husband and wife is upset;
not only is the wife alone given the power to bind her husband for
the current needs of the household, but the husband alone holds
the absolute power of revocation. Under article 180 C.C., the wife,
irrespective of matrimonial regime, legally acquired the right to
represent her husband for the current needs of the household and
for the maintenance of children, which included medical and surgical
care. 1
Until this mandate was legalized, the wife had held it from her
husband as a tacit mandate. Pothier in his Traitg de la puissance du
mari said this about the tacit mandate:
… lorsque une femme mari(e arr6te les parties des marchands et arti-
sans, pour les fournitures faites pour le m6nage, ces arrtds qu’elle fait,
par le consentement tacite de son marl, qui est dans l’usage de la charger
de ce soin, n’ont pas besoin de l’autorisation du mar pour 8tre valables;
car ce n’est pas la femme qui est censde faire en son nom ces arr~tds;
c’est le mar qui est cens6 les faire par le minist~re de sa femme.126
This tacit mandate was recognized as early as 1878 in Hudon v.
Marceau:
II suit de ces diverses r~gles que lorsque la femme commune en biens
achite des fournitures pour les besoins de la famille, elle le fait au nom
du mar et pour la communautd, et qu’elle n’encourre aucune responsabi-
litd personnelle, puisqu’elle ne peut s’obliger pour ou avec son marl qu’en
qualit6 de commune.127
Revocation of the tacit mandate had to be express and made
personally to third parties with whom the wife had contracted. 28
123 Supra, f.n.84, 15. According to Me Pineau, solidarity really is a protection
for the supplier. If the supplier knows that both spouses are liable, then he is
assured of someone who will pay.
124 Ibid.
125 This is in contrast to art.176 C.C. by which the husband is obliged to
a duty which is much wider, which cannot
supply his wife with necessities –
be revoked and which can be fulfilled without mandate.
126 Pothier, Oeuvres 3d ed. (1890), vol.7, 20, para.49.
127 Hudon v. Marceau [1878] B.R. 45, 48.
128 Lassonde, Du mandat tacite au mandat l6gal de l’article 180 c.c. (1965)
53 R.J.T. 62.
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In H6pital Ste-Jeanne d’Arc v. Prud’homme, it was decided that
notices published in the newspaper to the effect that the husband
declined all responsibility with respect to debts incurred in his name
could not bar the rights of a hospital to claim for treatment of his
wife for narcomania, in view of the fact that the hospital had no
knowledge of the notices. An additional reason was that the husband
was responsible for the debts of his wife for necessaries.129
This tacit mandate was not legalized until 1964. It was felt that
it should be legalized because of its disappearance in the event of
a separation de fait. Because the mandate was seen as emerging from
the pure volition of the husband, it could not be supposed that he
intended to be responsible for household debts incurred by the wife
when their life together was at an end. 30 Desruisseau v. Hume held
that the mandate ended with the dissolution of their life together,
even when the wife had separated only provisionally. 31 This pre-
viously had been stated in Morgan v. Vibert.132
Today, however, it is felt that in a separation de fait there is
still a glimmer of hope of reconciliation and, unlike divorce or
separation where the matrimonial regime is dissolved, the mandate
should exist unless revoked (even if the husband deserts his wife)
because it is in this situation that she most needs it.’3
With this new legal mandate, the wife has considerable power in
that she holds it from the law rather than from her husband’s
volition. Because it is legal, it is easier to consider that it subsists in
spite of cessation of life together. 34 However, notwithstanding the
fact that some may say that the wife has acquired dignity through
the imposition of a legal mandate, both consorts should still share
equally in the responsibilities of their marriage and should be able to
bind each other for the current needs of the household.
According to Me Caparros, the wife’s power to represent her
husband under article 180 C.C. makes no sense in the egalitarian
context of the new law. It had meaning in a context of incapacity,
but it no longer has so today. Furthermore, Me Caparros states
that “‘article 180 est, h la rigueur, en contradiction avec les articles
1266p, 1266q, 1425h et 1438 dans lesquels on prdcise que les deux
6poux sont oblig6s de contribuer aux besoins de la famille selon
129 [1949] C.S. 487.
13o Supra, f.n.22, 202.
131 (1933) 55 B.R. 508.
132 (1906) 15 B.R. 407.
133 Supra, f.n.122, 172.
134 Bri~re, “Le nouveau statut juridique de la femme maride” in Lois nou-
velles (1965), 7, 25.
1975l
JURIDICAL CAPACITY OF THE MARRIED WOMAN
leurs facult6s”. 135 Also, inspite of the fact that article 174 C.C. states
that both consorts should ensure the moral and material direction
of the family, article 180 C.C. only succeeds in perpetuating the
traditional roles. Professor Ouellette-Lauzon notes that in a situation
in which the manage exists entirely on the wife’s earnings, if the
husband were to purchase things for the household which fulfill the
requirements of necessities had the wife done so, she as the bread-
winner can refuse to pay for them and the creditors would only have
a recourse against the husband. 36 For the wife to be completely
equal each consort should have the automatic right to represent the
other for the current needs of the household.
The situation today is such that the married woman can represent
her husband not for the “necessities of life” as she could formerly
under the tacit mandate, but for the “current needs of the house-
hold”‘ 136a which are determined by many factors. Before legalization,
because the husband’s duty to supply his wife was an object of
judicial consideration, there was a tendency to stretch the mandate
to include things that did not necessarily have the character of
“necessities of life”. Once it was expressed as a text, there was a
general feeling that the judges would probably be less generous
than they had been under the old regime, and that there would be
a tendency to interpret it restrictively and to exclude those things
which were not regularly needed.
The “current needs of the household” was first examined in
Woodhouse and Co. Ltd. v. Blouin in 1966.13 It was claimed that even
though there was separation de corps the husband should pay the
debts incurred by the wife when they were ndcessaires & la vie.
However, the court did not establish a precedent by interpreting
article 180 C.C. in a new way. Rather, it felt itself bound by prior
jurisprudence and considered early cases. 38
Thus, although there had been a hope of objectifying the mandate,
the subjective criteria were kept, the court apparently considering
itself bound by the rules of tacit mandate. 39
In 1969, the legalized mandate was again examined in T. Eaton
Co. v Dame Egglefield.140 A credit card had been issued to Mrs
135 Supra, f.n.56, 318.
136 Supra, f.n.122, 171.
1n6a Art.180 C.C.
137 [1966] C.S. 456.
138 E.g., Morgan v. Vibert (1906) 15 B.R. 407; Baron v. Court [1939] C.S. 428;
Pridham v. Ruel [1943] R.L. 389.
139 Supra, f.n.122, 155.
140 [1969] C.S. 15.
McGILL LAW JOURNAL
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Egglefield and although it had specified that the credit extended
would not surpass $60 at any time, she had spent over $1,000 for
which both she and her husband were being sued together. The judge
considered the status of the husband, the fact that his wife had
concealed the purchases from him and was subsequently interdicted
for prodigality, and the fact that Eaton’s had allowed the limit of
credit to be surpassed:
… que les besoins d’une maison et les n6cessitds d’une maison sont deux
choses diffdrentes: ce qui peut 8tre un achat normal dans un foyer peut
devenir un luxe dans un autre foyer.141
L’article 180 a un caract6re subjectif d6termin6 par la fortune per-
sonnelle du mari et sa situation sociale. 142
The judge held that the husband could only be held responsible
for those effects that fell within the purview of article 180 C.C.
Because the store had not assured itself that the husband would pay
his wife’s debts, the remainder of the amount would have to be
sought from the wife. Finally, in comparing the present legal mandate
with the prior tacit mandate, he said that the results of both were
the same.
The extent of the power of the wife to bind her husband is well
illustrated in Dupuis Frkres v. Gauthier.14
3 This involved a nine year
separation de fait in which the wife had abandoned her husband
and children; the husband did not know where she lived and he
himself had never bought any of the merchandise in question. In
addition, the department store knew of her marital situation because
she was in their employ. However, because the husband had not
sent the notice of non-responsibility required by article 180 C.C., he
was held responsible for all the purchases she had made. Here too,
the judge referred to prior jurisprudence and decided that since a
husband is responsible for the debts of his wife he should be held
liable to pay the amount.
Critics of this judgment find it a rigorous application of article
180 C.C., and prefer the theory of the old mandate that separation
de facto implies a tacit revocation. They believe that the old mandate
should have been used in this instance instead of the legalized one in
view of the particular situation. 4 4
In Robert Simpson Montreal Ltd. v. Dix however, where a credit
card with a limitation of $120 had been issued and $1,033 had been
spent in tvgo days, although the plaintiff store invoked article 180
141 Ibid., 18.
142 Ibid., 19.
143 [1970] R.L. 178.
144 Supra, f.n.122, 114.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
C.C., the Court did not hold against the husband and said that the
wife had engaged herself personally.145
a) Protection for the Husband
In spite of the vast powers that the domestic mandate seemingly
gives to the married woman, it is limited in two ways. Firstly, the
husband still maintains the puissance paternelle with respect to the
children, and the wife cannot substitute her right for that of her
husband.’46 Furthermore, although the wife now has the power to
oversee emergencies pertaining to her children when her husband
is unavailable, in Me Ouellette’s opinion, she probably could not
decide on medical care when no present emergency exists. 147
Secondly, the husband has the power of retraction. Under com-
munity it was felt that the husband should have this power of
revocation since the wife could engage both the common property
and his private property. Under the old law, the revocation of the
tacit mandate had to be express and made personally to third parties
with whom the wife had contracted.148 Contrary to the tacit mandate
founded on the husband’s will, where cessation of life together
automatically meant stoppage of mandate, today when consorts are
separated de facto, this mandate is not deemed to cease. It was felt
therefore, that Bill 16 should not leave the husband with such a
heavy responsibility as under the old law without allowing him
certain methods of evasion. Therefore, the husband now has the
power of revocation which he must use formally unless he is prepared
to be sued by the merchants who give credit to his wife. Unless the
mandate is retracted, the married woman is deemed to hold it. In
cases involving de facto separation, it has been held that where the
husband has not retracted, third parties should not have to suffer
because of appearances; accordingly, husbands have been held liable
to pay in instances where the services given to the wife were ne-
cessary. 149
According to Professor F. H6leine, articles 1728 and 1758 C.C.
state the principles which are applied by article 180 C.C.’ 50
1728: The mandator … is bound toward third persons for all acts of
the mandatary, done in execution and within the powers -of the
145 [1971] C.S. 196.
146 Art. 243 C.C.
’47 Supra, f.n.22, 201.
148 Gratton v. Hermann (1931) 69 C.S. 479.
149 E.g., Dupuis Frares v. Gauthier [1970] R.L. 178; Gratton v. Hermann
(1931) 69 C.S. 479; see also Ouellette-Lauzon, supra, f.n.122.
150 Hdleine, Les pouvoirs managers de la femme maride en droit qudbdcois
(1972), 337.
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1758:
mandate after it has been extinguished, if its extinction be not
known to such third persons.
If notice of the revocation be given to the mandatary alone, it
does not affect third persons who in ignorance of it have con-
tracted with the mandatary, saving to the mandator his right
against the latter.
This retraction will not be effective unless third parties have know-
ledge of it at the moment of dealing with the wife. However, this
right is more theoretical than practical since it is difficult if not
impossible for the husband to advise all third parties capable of
dealing with his wife and even more so, to prove that they know of
this retraction at the moment of dealing with her.1 ‘r
In Professor Ouellette-Lauzon’s opinion, if the wife uses credit
cards, the companies should be advised personally as should the
regular suppliers of the wife. As for the rest, article 139 C.C.P.
provides for the issuance of a public notice.152
In the case of a wife abusing her right, her husband has the power
to revoke the mandate. However, the Civil Code says nothing with
respect to an abusive retraction by the husband: “…
le droit du
mar d’effectuer le retrait parait discr6tionnaire”J.’3 The problem
with the power of revocation is that it seems to be contradictory
to the intention of the legislators; if one admits that the power of
revocation is absolute and without boundary, then one returns to
the arbitrary rules prior to Bill 16. Perhaps in the case of a mandate
being retracted without good reason, a married woman can reacquire
it by bringing the matter before the court.
b) Protection for Third Parties
With respect to acts involving third parties, the legislators of
Bill 10 have taken another step forward in establishing equality
between the husband and the wife. Prior to Bill 10, Quebec Law did
not have a provision equivalent to article 1427 of the Napoleonic
Code, which provided that if one consort surpassed his or her powers
on the private, common or reserved property, the other could ask
for annulment so long as the act had not been ratified. Quebec Law
had opted neither for nullity, nor opposability, but rather for a
hybrid: “Saving the case of article 180, acts done by the wife without
her husband’s consent or judicial authorization do not affect the
property of the community beyond the amount of the benefit it
derives from them.”‘5
161 Supra, f.n.134, 26.
152 Supra, f.n.122, 101.
153 Supra, f.n.134, 26.
154 Former art.1296 C.C.
19751
JURIDICAL CAPACITY OF THE MARRIED WOMAN
Jurisprudence however, found this Bill 16 formula ineffective and
opted for nullity. In Rossy v. Cinq-Mars, the Court annulled the
sale of the common meubles meubtant made by the husband in
contravention of article 1292 C.C. which forbade him to alienate that
furniture which was in use by the household 55 The problem created
by this type of situation has been posed as follows:
One of the difficulties affecting the application of matrimonial rules relates
to the relationships between the consorts and third parties. The latter,
in the present state of our law are constantly having to ask themselves
whether the consort with whom they are desirous of contracting has the
necessary power to do so. It is urgent that this situation be clarified and
that third parties be enabled to contract without being subject to risk:
hence the presumption enacted in this article.-5 ,
Bill 10 established article 184 C.C. both as a protection for third
parties, and to facilitate transactions so that it would not be necessary
to prove change of regime or that one had the right to alienate the
property in question.
There is now a compromise between the protection of third
parties and that of the consorts; under article 183, the protection of
the consorts is assured by the nullity of the act passed without power,
and the protection of third parties by the relatively short delay in
which to contest the act. 7 On the one hand, article 184 C.C. prevents
contracts with third parties in good faith being annulled because
one of the parties exceeded his powers; on the other, it forbids one
of the consorts from proving that the moveable which the other
disposed of onerously was a property that did not belong to him or
her, or that the moveable disposed of gratuitously was an acquest
susceptible of being partitioned.’58 According to Me Pineau, article
183 C.C. will be inapplicable when the act bears on a moveable held
individually and when the third party is in good faith. Only if the
third party is in bad faith with respect to the moveable will the
consort foreseen by article 183 C.C. have a recourse.159 Me Pineau
goes on to say that he who acquires important property without
interrogating the vendor with respect to his matrimonial status can
lose the presumption of good faith. Therefore, it would be to his
advantage to ask for a double signature, which in turn would make
article 184 C.C. ineffective.
165 Rossy v. Cinq-Mars [1966] C.S. 423.
156Supra, f.nA8, 126.
15 Supra, f.n.19, 75.
158Supra, f.n.84, 25.
159 Ibid.
McGILL LAW JOURNAL
[Vol. 21
IV. CONCLUSION
As shown in the preceding sections, many articles of the Civil
Code have been introduced, repealed, or amended in order to esta-
blish equality for the married woman.
It is evident that the legislators have not yet had sufficient time
to complete their task for there are still a number of articles which,
because they are unchanged, might lead to the claim that the husband
was intended to remain the head of the family. In addition to articles
176 and 180 C.C. which have already been discussed, these articles
include the following:
A. Article 243 C.C. which came into force with the promulgation
of the Civil Code states that “the father alone” exercises
authority with respect to the child during marriage.
B. Article 174 C.C., on which the concept of male supremacy was
founded, still preserves the notion of inequality. This is so in
spite of the fact that it was amended by Bill 16 from “a husband
owes protection to his wife: a wife obedience to her husband”
to “[t]he wife participates with the husband in ensuring the
moral and material control of the family”. Nevertheless, it is
she who participates with him and not he with her, and it is
she who can exercise these functions alone when he is unable
to, rather than both being able to in the event of the other
being hors d’gtat.
C. Article 175 C.C. was improved by Bill 16. Originally the wife was
always obliged to live with her husband; now she may take
up a new residence in the event that the house chosen by the
husband exposes the family to danger of a physical or moral
nature. Because the prerogative of .choice was left with the
husband (even though his discretion was not absolute), and
was unchanged by Bill 10, again it would seem that the intention
was to leave the husband as the head of the family. 160
D. Article 83 C.C. provides that a married woman, unless she is
separated from bed and board, has no domicile but that of her
husband.
The foregoing articles serve as examples of those which require
review in order to comply with the spirit of equality of Bill 10.
1G0 According to Me Ouellette, this new right added little, for even before
Bill 16, the wife was not obliged to cohabit when the residence offered was
contrary to her dignity. Whereas before the situation was illegal, today she
can legalize it by asking the judge to authorize a separate residence; supra,
f.n.22.
1975″]
JURIDICAL CAPACITY OF THE MARRIED WOMAN
In general then, the married woman under partnership of
acquests is the juridical equal of her husband. But is this so in fact?
Does the business world recognize her equality and grant her per-
sonal loans and hypothecs, and make her solely responsible for
her charge accounts?
To learn about prevailing attitudes, I submitted a questionnaire
to five banks and five department stores with the explanation that
I wanted to know whether their treatment of women had changed
with the promulgation of the new law.
Of the banks, only two answered: One sent a non-committal
letter that ignored the questionnaire and stated that it did not
matter whether a borrower was male or female and that any
differences the bank took into account were those it was required
to observe by the law of the province. The second bank replied
that with respect to personal loans it would only lend to a house-
wife who had sufficient private means, and with respect to mortgages
it would definitely not give one to any married woman unless her
husband guaranteed it. In conclusion, the bank stated that in Quebec,
it is the credit of the husband that is considered when the wife
borrows.
Of the department stores, three answered. One stated that they
did not answer questions of this type by mail. With respect to the
other two, the consensus of opinion was that Bill 10 had not in-
fluenced their treatment of women, and that the husband was still
responsible for his wife’s debts while the opposite was not so.
The attitudes of the business world and institutions in general
may take some time to change. But change they must, as has the
Civil Code, to recognise the full juridical capacity of the married
woman.
