Partition of the Family Patrimony: in the event of a separation, divorce, dissolution or nullity of a marriage
Pursuant art 414 of the Quebec Civil Code, “marriage entails the establishment of a family patrimony”. This means that once you are married, certain property, regardless the owner will be partitioned in accordance with the rules of family patrimony that will be addressed below.
The Family Patrimony rules are of public order and it applies to all married couples living in Quebec. Neither spouse can renounce to its application in a marriage contract and it is imposed on all couples, regardless of their matrimonial regime. This is particularly important for couples who now live in Quebec but were married abroad with a marriage contract or under a foreign matrimonial regime – it will still apply to you!
The rules of family patrimony do not apply to common-law couples, which is why it is important for common-law partners who wish to be bound to similar rules, sign a common-law agreement. (To learn more about common-law agreements, please read our blog post on this subject here)
The properties that compose the family patrimony are listed under article 415 of the Quebec Civil Code which includes:
The main family residence and secondary residence (cottage), regardless of the date of purchase;
Furniture, paintings, all moveables in the family residence;
The rights which confer use of the family residences (lease);
The family vehicles, used by the family and for the family that are owned by one of the spouses, regardless of the date of purchase. Leased vehicles are not part of the family patrimony (because the parties do not own it);
RRSPs accumulated during the marriage up to the date of separation;
Quebec Pension Plan earnings accumulated during the marriage up to the date of separation, to learn more about the partition of the Quebec Pension Plan, please read our blog post here;
Private pension plan earnings, accumulated during the marriage up to the date of separation;
A gift or an inheritance received by one of the spouses before or during the marriage are excluded from the family patrimony.
In the event of a separation, divorce, dissolution or nullity of a marriage, a few steps will need to be taken in order to partition the property of the family patrimony.
The first step is to determine the net value of the properties on the date of the institution of the court proceedings (considered the date of separation). This is done by deducting debts from the acquisition, improvement, maintenance or preservation from the market value the property.
The earnings accumulated from retirement plans are not included in this calculation since their partition is done according to their own rules.
The court can decide, however, to determine the net value of the properties from the date the spouses separated from bed and board de facto, instead of the date of the institution of the proceedings (which is the default rule).
Once the parties obtained the net value of the family patrimony, in certain cases one f the parties may be entitled to a deduction from the net amount. You are entitled to a deduction if:
One of the spouses invested in the acquisition of the family patrimony money that were received by donation, inheritance or money possessed prior to the marriage, the spouse has the right deduct the amount invested plus the plus value (growth from the time of the contribution until the separation) from of the family patrimony;
If one of the spouses owned a property prior to the marriage, which falls in family patrimony, that spouse can deduct this property in full of the partition of the family patrimony;
If one of the spouses owned a property prior to the marriage and sold this property to invest in a property part of the family patrimony, the spouse has the right deduct the amount invested plus the plus value of the family patrimony;
After the deductions are done, the partition of the family patrimony is completed by splitting 50% of the remaining value. This can be done either by transferring over the half of the property or paying it out.
It is important to highlight that these are general rules and that some exceptions may apply. If you have further questions about the partition of your property, please do not hesitate to contact us.