August 21, 2023 | Divorce

How is Matrimonial Property Regulated On-Reserve?

If you would like to file for divorce in Quebec and you are a part of an Indigenous community, there are certain laws and regulations that apply. The federal Divorce Act is applicable to all provinces and territories of Canada, both on and off reserve. However, there are rights and protections available to members of a First Nation community at the end of a marriage, common-law relationship, or death of a spouse to divide matrimonial real property.

Matrimonial real property refers to land or a family residence that are immovable and shared by two people during a marriage or a common-law relationship. Normally, divorce is followed by the division of property between spouses.

Off-reserve, property division is governed by provincial legislation such as the Civil Code of Quebec. On-reserve, the Supreme Court concluded in the decision Derrickson v. Derrickson, that reserve lands fall under federal jurisdiction. Therefore, provincial and territorial laws do not apply to matrimonial property located on-reserve. This was problematic at the time because the rights of the First Nations were not adequately regulated.

In 2013, the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was enacted by the federal government in collaboration with Indigenous organizations in order to fill the gap and to regulate matrimonial property located on-reserve. This act applies to married couples or common-law partners living on-reserve where at least one partner is a member of a First Nation or is declared ‘Status Indian’. Many Indigenous communities are governed by this provisional federal law, however, under the FHRMIRA, First Nations are able to implement their own laws as well.

It is important to note that non-member spouses of a First Nation are not allowed, under the FHRMIRA, to permanently gain possession of reserve lands. They are entitled to a share of their family residence, but not the value of the land itself. When a family home is built on reserve land, non-members cannot sell or benefit from the increased value of the land either.

That being said, it is recommended to consult with a family lawyer and mention that you are a member of a First Nations community to ensure that the appropriate rules are applied and that your matrimonial property is divided between spouses accordingly.