The family patrimony in the province of Quebec
Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.
The family patrimony is composed of the following property owned by one or the other of the spouses: the residences of the family or the rights which confer use of them, the movable property with which they are furnished or decorated and which serves for the use of the household, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan.
This patrimony also includes the registered earnings, during the marriage, of each spouse pursuant to the Act respecting the Québec Pension Plan or to similar plans.
The earnings contemplated in the second paragraph and accrued benefits under a retirement plan governed or established by an Act which grants a right to death benefits to the surviving spouse where the marriage is dissolved as a result of death are, however, excluded from the family patrimony.
Property devolved to one of the spouses by succession or gift before or during the marriage is also excluded from the family patrimony.
For the purposes of the rules on family patrimony, a retirement plan is any of the following:
- a plan governed by the Act respecting Supplemental Pension Plans or that would be governed thereby if it applied where the spouse works;
- a retirement plan governed by a similar Act of a legislative jurisdiction other than the Parliament of Québec;
- a plan established by an Act of the Parliament of Québec or of another legislative jurisdiction;
- a retirement-savings plan;
- any other retirement-savings instrument, including an annuity contract, into which sums from any of such plans have been transferred.
In the event of separation from bed and board, or the dissolution or nullity of a marriage, the value of the family patrimony of the spouses, after deducting the debts contracted for the acquisition, improvement, maintenance or preservation of the property composing it, is equally divided between the spouses or between the surviving spouse and the heirs, as the case may be.
Where partition is effected upon separation from bed and board, no new partition is effected upon the subsequent dissolution or nullity of the marriage unless the spouses had voluntarily resumed living together; where a new partition is effected, the date when the spouses resumed living together is substituted for the date of the marriage for the purposes of this section.
The net value of the family patrimony is determined according to the value of the property composing the patrimony and the debts contracted for the acquisition, improvement, maintenance or preservation of the property composing it on the date of death of the spouse or on the date of the institution of the action in which separation from bed and board, divorce or nullity of the marriage, as the case may be, is decided; the property is valued at its market value.
The court may, however, upon the application of one or the other of the spouses or of their successors, decide that the net value of the family patrimony will be established according to the value of such property and such debts on the date when the spouses ceased living together.
Once the net value of the family patrimony has been established, a deduction is made from it of the net value, at the time of the marriage, of the property then owned by one of the spouses that is included in the family patrimony; similarly, a deduction is made from it of the net value of a contribution made by one of the spouses during the marriage for the acquisition or improvement of property included in the family patrimony, where the contribution was made out of property devolved by succession or gift, or its reinvestment.
A further deduction from the net value is made, in the first case, of the increase in value acquired by the property during the marriage, proportionately to the ratio existing at the time of the marriage between the net value and the gross value of the property, and, in the second case, of the increase in value acquired since the contribution, proportionately to the ratio existing at the time of the contribution between the value of the contribution and the gross value of the property.
Reinvestment during the marriage of property included in the family patrimony that was owned at the time of the marriage gives rise to the same deductions, adapted as required.
Partition of the family patrimony is effected by giving in payment or by payment in money.
If partition is effected by giving in payment, the spouses may agree to transfer ownership of other property than that composing the family patrimony.
The court may, at the time of partition, award certain property to one of the spouses and also, where it is necessary to avoid damage, order the debtor spouse to perform his or her obligation by way of instalments spread over a period of not over ten years.
It may also order any other measure it considers appropriate to ensure that the judgment is properly executed, and, in particular, order that security be granted to one of the parties to guarantee performance of the obligations of the debtor spouse.
Where property included in the family patrimony was alienated or misappropriated in the year preceding the death of one of the spouses or the institution of proceedings for separation from bed and board, divorce or annulment of marriage and was not replaced, the court may order that a compensatory payment be made to the spouse who would have benefited from the inclusion of that property in the family patrimony.
The same rule applies where the property was alienated over one year before the death of one of the spouses or the institution of proceedings and the alienation was made for the purpose of decreasing the share of the spouse who would have benefited from the inclusion of that property in the family patrimony.
The court may, on an application, make an exception to the rule of partition into equal shares, and decide that there will be no partition of earnings registered pursuant to the Act respecting the Québec Pension Plan or to similar plans where it would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them.
The spouses may not, by way of their marriage contract or otherwise, renounce their rights in the family patrimony.
One spouse may, however, from the death of the other spouse or from the judgment of divorce, separation from bed and board or nullity of marriage, renounce such rights, in whole or in part, by notarial act en minute; that spouse may also renounce them by a judicial declaration which is recorded, in the course of proceedings for divorce, separation from bed and board or nullity of marriage.
Renunciation shall be entered in the register of personal and movable real rights. Failing entry within a period of one year from the time when the right to partition arose, the renouncing spouse is deemed to have accepted.
Renunciation by one of the spouses, by notarial act, of partition of the family patrimony may be annulled by reason of lesion or any other cause of nullity of contracts.
The partition of the earnings registered in the name of each spouse pursuant to the Act respecting the Québec Pension Plan or to a similar plan is effected by the body responsible for administering the plan, in accordance with that Act or the Act applicable to that plan, unless the latter Act provides no rules for partition.
The partition of the accrued benefits of one of the spouses under a pension plan governed or established by an Act is effected according to the rules of valuation and devolution contained in that Act, where that is the case.
In no case, however, may the partition of such benefits deprive the original holder of such benefits of over one-half of the total value of the benefits accrued to him before or during the marriage, or confer more benefits on the beneficiary of the right to partition than the original holder of these benefits has under his plan.
Between the spouses or for their benefit, and notwithstanding any provision to the contrary, such benefits and benefits accrued under any other pension plan are transferable and seizable for partition of the family patrimony.
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These documents are not legal opinions.