The legal matrimonial regime in the province of Quebec
HE LEGAL MATRIMONIAL REGIME OF PARTNERSHIP OF ACQUESTS IN THE PROVINCE OF QUEBEC
The property that the spouses possess individually when the regime comes into effect or that they subsequently acquire constitutes acquests or private property according to the rules that follow.
The acquests of each spouse include all property not declared to be private property by law, and, in particular,
(1) the proceeds of that spouse's work during the regime;
(2) the fruits and income due or collected from all that spouse's private property or acquests during the regime.
The private property of each spouse consists of
(1) property owned or possessed by that spouse when the regime comes into effect;
(2) property which devolves to that spouse during the regime by succession or gift, and the fruits and income derived from it if the testator or donor has so provided;
(3) property acquired by that spouse to replace private property and any insurance indemnity relating thereto;
(4) the rights or benefits devolved to that spouse as a subrogated holder or as a specified beneficiary under a contract or plan of retirement, other annuity or insurance of persons;
(5) that spouse's clothing and personal papers, wedding ring, decorations and diplomas;
(6) the instruments required for that spouse's occupation, saving compensation where applicable.
Property acquired with private property and acquests is also private property, subject to compensation, if the value of the private property used is greater than one-half of the total cost of acquisition of the property. Otherwise, it is an acquest subject to compensation.
The same rule applies to life insurance, retirement pensions and other annuities. The total cost is the aggregate of the premiums or sums paid, except in term insurance where it is the amount of the latest premium.
Where, during the regime, a spouse who is already privately an undivided co-owner of a property acquires another part of it, this acquired part is also that spouse's private property, saving compensation where applicable.
However, if the value of the acquests used to acquire that part is equal to or greater than one-half of the total value of the property of which the spouse has become the owner, this property becomes an acquest, subject to compensation.
The right of a spouse to support, to a disability allowance or to any other benefit of the same nature remains the private property of that spouse; however, all pecuniary benefits derived from these are acquests, if they fall due or are collected during the regime or are payable to that spouse's heirs and successors at death.
No compensation is due by reason of any amount or premium paid with the acquests or the private property to acquire the support, allowance or other benefits.
The right to claim damages and the compensation received for moral or corporal injury are also the private property of the spouse.
The same rule applies to the right and the compensation arising from an insurance contract or any other indemnification scheme, but no compensation is payable in respect of the premiums or amounts paid with the acquests.
Property acquired as an accessory of or an annex to private property, and any construction, work or plantation on or in an immovable which is private property, remain private, saving compensation, if need be.
However, if the accessory or annex was acquired, or the construction, work or plantation made, from acquests, and if its value is equal to or greater than that of the private property, the whole becomes an acquest subject to compensation.
Securities acquired by the effect of a declaration of dividends on securities that are the private property of either spouse remain that spouse's private property, saving compensation.
Securities acquired by the effect of the exercise of a subscription right, a pre-emptive right or any other similar right conferred on either spouse by securities that are that spouse's private property likewise remain so, saving compensation, if need be.
Redemption premiums and prepaid premiums on securities that are the private property of either spouse remain that spouse's private property without compensation.
Income derived from the operation of an enterprise that is the private property of either spouse remains that spouse's private property, subject to compensation, if it is reinvested in the enterprise.
No compensation is due, however, if the investment was necessary in order to maintain the income of the enterprise.
Intellectual and industrial property rights are private property, but all fruits and income arising from them and collected or fallen due during the regime are acquests.
All property is presumed to constitute an acquest, both between the spouses and with respect to third persons, unless it is established that it is private property.
Any property that a spouse is unable to prove to be an exclusively private property or acquest is presumed to be held by both spouses in undivided co-ownership, one-half by each.
Each spouse has the administration, enjoyment and free disposal of his or her private property and acquests.
Neither spouse may, however, without the consent of the other, dispose of acquests inter vivos by gratuitous title, with the exception of property of small value or customary presents.
A spouse may be authorized by the court to enter into the act alone, however, if consent cannot be obtained for any reason or if refusal is not justified in the interest of the family.
The restriction to the right to dispose of acquests does not limit the right of either spouse to designate a third person as a beneficiary or subrogated holder of an insurance of persons, a retirement pension or any other annuity, subject to the application of the rules respecting the family patrimony.
No compensation is due by reason of the sums or premiums paid with the acquests if the designation is in favour of the other spouse or of the children of either spouse.
The spouses, individually, are liable on both their private property and their acquests for all debts incurred by them before or during the marriage.
While the regime lasts, neither spouse is liable for the debts incurred by the other, subject to articles 397 and 398 of the Civil Code of Quebec.
The regime of partnership of acquests is dissolved by
(1) the death of one of the spouses;
(2) a conventional change of regime during the marriage;
(3) a judgment of divorce, separation from bed and board, or separation as to property;
(4) the absence of one of the spouses in the cases provided for by law;
(5) the nullity of the marriage if, nevertheless, the marriage produces effects.
The effects of the dissolution are produced immediately, except in the cases of subparagraphs 3 and 5, where they are retroactive, between the spouses, to the day of the application.
In any case of dissolution of a regime, the court may, upon the application of either spouse or of the latter's successors, decide that, in the mutual relations of the spouses, the effects of the dissolution are retroactive to the date when they ceased to live together.
Each spouse retains his or her private property after the regime is dissolved.
One spouse may accept or renounce the partition of the other spouse's acquests, notwithstanding any agreement to the contrary.
Acceptance may be either express or tacit.
No spouse who has interfered in the management of the acquests of the other spouse after the regime is dissolved may receive the share of the acquests of the other spouse to which he or she is entitled unless the other spouse has accepted the partition of the acquests of the spouse who interfered.
Acts of simple administration do not constitute interference.
Renunciation shall be made by notarial act en minute or by a judicial declaration which is recorded.
Renunciation shall be entered in the register of personal and movable real rights; failing entry within one year from the date of the dissolution, the spouse is deemed to have accepted.
If either spouse renounces partition, the share of the other's acquests to which he or she would have been entitled remains vested in the other.
However, the creditors of the spouse who renounces partition to the prejudice of their rights may apply to the court for a declaration that the renunciation may not be set up against them, and accept the share of the acquests of their debtor's spouse in his or her place and stead.
In that case, their acceptance has effect only in their favour and only to the extent of the amount of their claims; it is not valid in favour of the renouncing spouse.
A spouse who has misappropriated or concealed acquests, wasted acquests or administered them in bad faith forfeits his or her share of the acquests of the other spouse.
Acceptance and renunciation are irrevocable. Renunciation may be annulled, however, by reason of lesion or any other cause of nullity of contracts.
When the regime is dissolved by death and the surviving spouse has accepted the partition of the acquests of the deceased spouse, the heirs of the deceased spouse may accept or renounce the partition of the surviving spouse's acquests, and, excepting preferential awards which only the surviving spouse is entitled to receive, the provisions on the dissolution and liquidation of the regime apply to them.
If one of the heirs accepts partition and the others renounce it, the heir who accepts may not take more than the portion of the acquests that he would have had if all had accepted.
Renunciation by the surviving spouse may be set up against the creditors of the deceased spouse.
When a spouse dies while still entitled to renounce partition, the heirs have a further period of one year from the date of death in which to have their renunciation entered.
When the partition of a spouse's acquests is accepted, the property of the patrimony of that spouse is first divided into two masses, one comprising the private property and the other the acquests.
A statement is then prepared of the compensation owed by the mass of private property to the mass of the spouse's acquests, and vice versa.
The compensation is equal to the enrichment enjoyed by one mass to the detriment of the other.
Property susceptible of compensation is estimated according to its condition at the time of dissolution of the regime and to its value at the time of liquidation.
The enrichment is valued as on the day the regime is dissolved; however, when the property acquired or improved was alienated during the regime, the enrichment is valued as on the day of the alienation.
No compensation is due by reason of expenses necessary or useful for the maintenance or preservation of the property.
Unpaid debts incurred for the benefit of the private property give rise to compensation as if they had already been paid with the acquests.
Payment with the acquests of any fine imposed by law gives rise to compensation.
If the statement shows a balance in favour of the mass of acquests, the spouse who holds the patrimony makes a return to that mass for partition, either by taking less, or in value, or with his or her private property.
If the statement shows a balance in favour of the mass of private property, the spouse removes assets from his or her acquests up to the amount owed.
Once the settlement of compensation has been effected, the net value of the mass of acquests is established and evenly divided between the spouses. The spouse who holds the patrimony may pay the portion due to the other spouse by paying him or her in money or by giving in payment.
If the dissolution of the regime results from the death or absence of the spouse who holds the patrimony, the other spouse may require to be given in payment, on condition of payment of any balance, in cash or by instalments, the family residence and the movable property serving for the use of the household or any other family property to the extent that they were acquests or property forming part of the family patrimony.
If there is no agreement on the payment of the balance, the court fixes the terms and conditions of guarantee and payment.
If the parties do not agree on the valuation of the property, it is valued by experts designated by the parties or, failing them, the court.
Dissolution of the regime does not prejudice the rights, before the partition, of former creditors against the whole of their debtor's patrimony.
After the partition, former creditors may only pursue payment of their claims against the debtor spouse. However, if the claims were not taken into account when the partition was made, they may, after discussion of the property of their debtor, pursue the other spouse. Each spouse then preserves a remedy against the other for the amounts he or she would have been entitled to if the claims had been paid before the partition.
In no case may the spouse of the debtor spouse be called upon to pay a greater amount than the portion of the acquests he or she received from the latter.
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These documents are not legal opinions.