The Family Patrimony

Mine! Yours! Whose?

On July 1, 1989, the new Civil Code was enacted, instituting the provisions on family patrimony. The purpose of these provisions is to promote economic equality between spouses and to put an end to certain inequities faced by the economically weaker spouse, particularly in cases where the spouses opted for a matrimonial regime with separation of property. The effect of the law is to impose equal sharing of the value of the family patrimony assets in a judgment for divorce, separation or marriage annulment or upon the death of one of the spouses.

TO WHOM DOES THIS LAW APPLY?

All married couples, regardless of the date of their marriage and regardless of their matrimonial regime, are subject to this law. Therefore, spouses must share the family patrimony, whether they have a marriage contract or not, and whether they have children or not. This is the general rule.

EXCEPTIONS 

The following spouses are not subject to this division of the family patrimony:

• Those who signed a waiver before January 1, 1991
• Those who applied to the court for divorce, legal separation or marriage annulment before May 15, 1989
• Those who ceased to live together before May 15, 1989 and who by written agreement or otherwise resolved the consequences of their separation.

The rules concerning the division of the family patrimony do not apply to de facto spouses.

WHAT CONSTITUTES FAMILY PATRIMONY?

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

• The family residences or the rights conferring the use thereof
• Furniture that furnishes or decorates these residences and is used for household purposes
• Motor vehicles used for family travel
• Benefits accumulated during a marriage under a pension plan (except, in the case of death, where the pension plan is governed or established by an deed granting the surviving spouse the right to death benefits)
• The earnings recorded during the marriage in the name of each spouse under the Act respecting the Québec Pension Plan or equivalent programs (except in the case of death).

Excluded from the family patrimony is property received by one of the spouses, by succession or by gift, before or during the marriage, or the re-use of such property.

WHAT HAPPENS DURING THE MARRIAGE?

As long as the marriage lasts, the rules on family patrimony do not alter the powers of the spouses regarding the property of which each is the owner. Each spouse retains the right to freely dispose of his or her property, subject to restrictions on the protection of family residences (eg., a spouse who owns a family home cannot sell it without the written consent of the other spouse, and cannot mortgage an immovable serving as a family residence that has fewer than five dwellings without the written consent of the other spouse) and property used for the household (a spouse owning such property cannot alienate, hypothecate or transport the property out of a family residence without the consent of his or her spouse). Other restrictions also derive from the matrimonial regime (for example, a spouse married under the regime of partnership of acquests cannot dispose of one of his acquests for free, inter vivos, without the consent of the other).

In short, the law does not make spouses co-owners of property included in the family patrimony, but confers on them the right to share the value of that property.

WHEN IS THE PATRIMONY DIVIDED?

The division of the family patrimony is a consequence of a legal separation, divorce, marriage annulment or the death of one of the spouses. When one of those situations occur, then the value of the family patrimony is divided equally. The court may, however, decide on unequal division for exceptional reasons.

HOW IS THE VALUE ESTABLISHED?

When the right to division is exercised, the assets included in the family patrimony are estimated at their market value. However, some deductions are permitted based on calculations that are sometimes rather complicated. It is therefore better to rely on a real specialist, such as a notary, to establish the value.

Considering the provisions on family patrimony, you should consult your notary, because:

• If you are a future spouse it would be more prudent to have the list and value of the property you own at the time of marriage recorded in a marriage contract.
• If you are already married, it may be appropriate to make changes to your marriage contract or will.

Source : Chambre des notaires du Québec (Translation)