Family Patrimony, Divorce, and Division

Family Patrimony

One of the effects of marriage is the creation of the Family Patrimony. The property designated as forming part of the Family Patrimony will be shared, regardless of the matrimonial regime of the spouses. A property included in the family patrimony will be divided even if it belongs to only one spouse.

Property of the Family Patrimony

The family patrimony consists of the following property, owned by either spouse:

the family residences or the rights that confer their use,
the furniture that furnishes or decorates them and that serves for household use,
the automobiles used for family transportation,
the retirement rights accumulated during the marriage (including RRSPs but not TFSAs).

The income recorded, during the marriage, in the name of each spouse under the Québec Pension Plan or equivalent programs also form part of the family patrimony.

Property received by one of the spouses by inheritance or gift, before or during the marriage, does not form part of the Family Patrimony.

The Principle of Sharing the Family Patrimony

In the event of divorce (as well as separation from bed and board, dissolution, or annulment of marriage) the net value of the family patrimony of the spouses will be divided, regardless of which of the two owns the property included in it.

It is a net value, meaning that debts contracted for the acquisition, improvement, maintenance, or preservation of the family patrimony property will be deducted before the division.

The rules for division of the family patrimony are set out in the Civil Code of Québec.
http://legisquebec.gouv.qc.ca/fr/showdoc/cs/ccq-1991

Deductions apply to property acquired through inheritance or gift. There is also a deduction of the net value of family patrimony property acquired before the marriage.

Furthermore, the court may depart from the principle of equal division if it would otherwise cause an injustice.

Special rules also apply in cases of dissipation of property.

A Matter of Public Order

This is a matter of public order. Spouses cannot renounce, by their marriage contract or otherwise, their rights in the family patrimony.

However, spouses may reach an agreement during court proceedings to amicably divide the property in the family patrimony. This division must be confirmed by the court.

There is also the rather rare case of notarial renunciation by the spouses, which was possible in the past. This possibility of renunciation no longer exists today.

Matrimonial Regime

Generally, the property of the Family Patrimony represents the bulk of the assets of Québec households.

There are also other assets, such as real estate not used as a residence, investments outside of RRSPs, and TFSAs. The division of such assets depends on the matrimonial regime of the spouses.

Regarding the matrimonial regime, spouses may, by marriage contract, make various stipulations, subject to the mandatory provisions of the law and public order. For example, spouses may choose a separation of property regime.

The marriage contract must be made by notarial deed.

Spouses who, prior to the celebration of their marriage, did not determine their matrimonial regime by marriage contract are subject to the regime of partnership of acquests.

In the event of divorce (as well as separation from bed and board, dissolution, or annulment of marriage) the matrimonial regime (if it is a community regime) will be dissolved and division will proceed according to the rules applicable to the regime concerned. In Québec, the rules for the division of acquests are set out in the Civil Code of Québec.

Compensatory Allowance

At the time of divorce (as well as separation from bed and board, annulment of marriage, or even in the event of the death of one of the spouses), the court may order one spouse to pay the other a Compensatory Allowance, as compensation for that spouse’s contribution, in property or in services, to the enrichment of the other spouse’s patrimony.

The classic case is the regular collaboration of a spouse in a business without adequate remuneration.

Lump Sum

This is not strictly speaking a measure of property division. The Divorce Act allows the court to order the payment of a lump sum (also referred to as a global sum).

The lump sum is of an alimentary nature. It replaces or supplements alimony. Generally, it is granted to meet a specific need, such as acquiring housing, funding a study or business project, or allowing a complete break between the spouses.

In Conclusion

The division of property in a divorce involves numerous and complex rules. Therefore, it is recommended to seek the advice of an experienced lawyer to make the right decisions.

This article does not constitute a legal opinion; no decision should be made based on its content, as each situation is unique. Call us toll-free at 514-482-0887 to discuss your specific situation with an experienced lawyer.

You may also want to read our article on the grounds for divorce:
http://dufourdion.com/2018/07/25/divorce-les-motifs/