Marriage is not always perfect. Once you decided that ending your marriage is the only viable option, you need to be prepared for what is ahead. This is where we come in. Our professional team of experienced divorce lawyers will provide you the legal advice necessary in order to make this challenging period as smooth as possible.
Since we work under the jurisdiction of the Province of Quebec, it is important to understand that Quebec laws are different from the rest of Canada, the United States and from what you see on television.
In accordance with Article 3 of the Divorce Act, either spouse has a right to institute divorce proceedings if they are residing in the province of Quebec for at least one year immediately preceding the commencement of the Divorce proceedings. Being a renowned family law firm in Montreal, we are fully versed in what is necessary in navigating through the divorce process and everything accessory that comes with it.
Divorce is not an easy decision. Choosing a lawyer to help guide you through the process is also difficult and can be daunting. In order to make the decision, it is important to understand what it entails and how it all works.
Sheri M. Spunt Avocats is a leading law firm of best family lawyers in Montreal. We are here to assist you through your divorce as efficiently and as quickly as possible. Our lawyers ensure the best care and support for your needs.
As for the requirements to divorce your spouse, there are certain grounds that must be met before a judgment in divorce is rendered. The divorce lawyer who conducts the consultation will be there to guide you throughout the entire process.
There are 3 grounds for divorce in Quebec:
The spouses must have lived separated for one year, or separated for one year and living separated under the same roof for one year;
The spouse in which you file against committed adultery;
The spouse in which you file against committed physical and/or mental cruelty.
We often hear the misconception that you cannot file for divorce before the one year of separation has lapsed. You can file for divorce even if the one year has not elapsed but the final divorce judgment will only be rendered after that one year of separation. However, if the grounds of divorce are adultery or physical/mental cruelty, you do not have to be separation for one year before obtaining a divorce judgment.
Division of matrimonial property
Unless you have a marriage contract or you married outside of Quebec and Quebec was not your first common domicile, spouses married in the province of Quebec are subject to the rules of Partnership and Acquests. However, the rules of the Family Patrimony apply to all couples living in Quebec despite where they married or the location of their first common domicile.
The Family patrimony is partitioned 50/50. There are some exceptions, which are deductions and exclusion, and in particular circumstances, it is possible to ask for an unequal partition. The Family Patrimony is composed of the following property in accordance with section 415 of the Civil Code of Quebec, subject to certain exceptions below:
Primary residence or the rights which confer use of them;
Secondary residence (country home, cottage, owned not rented);
Objects furnishing or decorating the Family residences (furniture, major appliances, small appliances, electronics, artwork);
Owned motor vehicles used for family transportation;
Registered Retirement saving plans (RRSP) contributions during the marriage;
Private Pension Plan, accrued during the marriage;
Quebec Pension Plan, accrued during the marriage;
Canadian Pension Plan, accrued during the marriage;
For the purposes of family patrimony, a retirement plan can be any of the following, but not limited to:
A plan governed by the Act respecting supplemental pension plans or that would be governed thereby if it applied where the spouse works;
A retirement plan governed by a similar Act or a legislative jurisdiction other than the Parliament of Quebec;
A plan established by an Act of the Parliament of Quebec or of another legislative jurisdiction;
A retirement-savings plan;
Any other retirement savings instrument, including an annuity contract, into which sums from any of such plans have been transferred.
Exceptions to family patrimony
The gains accrued under a pension plan governed or established by an act granting a right to death benefits to the surviving spouse when the marriage is dissolved as a result of death are excluded from the family patrimony.
Property invested by one spouse by gift or inheritance before or during the marriage are also excluded from the family patrimony. Furthermore, there is a value added (plus value) component, which is a calculation that is done of the growth of that gift or inheritance on the total value of the property.
Moveable and immovable property not included in the family patrimony, or when the family patrimony does not apply, is subject to the rules pertaining to the spouses’ matrimonial regime.
Spouses who have signed a Marriage Contract prior to their marriage elect a matrimonial regime, and for the most part, spouses chose Separation as to Property.
In cases where the spouses did not enter into a Marriage Contract (most commonly referred to as a : “Prenuptial Agreement”) and that the spouses were domiciled in Quebec at the time of their marriage, the default matrimonial regime is the Partnership of Acquests.
In certain situations, when neither spouse lives in Quebec, it is possible that the rules pertaining to family patrimony are not applicable and that the law of another province or country must be applied regarding the partition of the movable and immoveable property that would normally fall into the family patrimony in Quebec. Quebec International Private Law contains very precise provisions with this particular type of situation (including article 3089 of the Civil Code of Quebec). Knowledge of the law in force in other provinces or countries is essential since the foreign law may contain less generous rules than the ones applicable in Quebec, or even more favorable rules for one of the spouses in some cases.
In the event that the spouses lived in different provinces or countries at the time of their marriage, the conflict of law provisions contained in the international private law section of our Civil Code applies. Section 3123 of the Civil Code of Quebec provides that the applicable law to the matrimonial regime of spouses who at the time of the marriage, are domiciled in different countries is the law of their first common domicile as a couple or failing that, the law of the place of solemnization of their marriage or civil union.
It can be difficult to estimate the total length of the divorce process. However, the process begins when one of the parties files a proceeding in court called an Application for divorce (you can also file a formal request for a safeguard order for emergencies and a formal request for provisional measures, such as custody). The other spouse is then served (receives) the application with all of the requests.
The other spouse then has 15 days to file an answer in the court record. The spouses then go to court if a safeguard order or provisional measures are requested, but this is not the trial, this is in order to obtain temporary order from the court while waiting for trial. Requests for provisional measures must be made 10 days or more after they have been served, however this delay can be reduced if there is something urgent, which is called an Application for safeguard order or Application for interim request.
The next step is to outline a timetable with deadlines of when certain procedural steps need to be completed, which is called a case protocol (examinations out of court – questioning of witnesses, deadline to file an expert opinion, etc.). The case protocol must be filed in court within 3 months of service. The judge will then have a hearing on provisional measures such as child custody, child support etc. The decision is temporary. The parties must fix a date for trial. To get a trial date, all documents must be ready within 1 year after the judge accepts the case protocol. The trial can then be scheduled for a duration based on the case, it can be any length between a few hours to a few days. After the trial, the judge usually has 6 months to render their judgement.
However, if you and your spouse agree with all the points of your case and sign a consent agreement at any point, a document called a Consent to Judgment on Accessory Measures will be drafted for both parties to sign.
One option is a joint Application for divorce. The spouses are referred to as joint applicants. You can do a joint request for divorce in the following situations: if the spouses agree on all the consequences of their divorce, including the custody of their children, child support, support payments to the other spouse, how their property will be divided, etc.
The spouses must also agree on all points, such as the date they stopped living together.
The grounds (reasons) for the divorce are that the spouses have been living separate and apart for at least one year. Adultery or physical and mental cruelty cannot be used as the grounds in a joint request for divorce. If the spouses hire the same lawyer or notary to prepare their divorce agreement and other paperwork, he or she must give both parties the same advice and look out for their interest jointly.
However, the spouses do not have to apply for the divorce together, even if they agree on everything. Spouses can collaborate, but they can apply for the divorce separately. Here are a few examples:
Spouses can put all the points they agree on in a written agreement called a Consent to judgment on Accessory Measures. Then this will then be homologated by the court which means it becomes a judgment of the court.
During the court process both parties have the obligation to be fully transparent and forthcoming with financial disclosure. However not everyone follows these rules. If your spouse does not collaborate to provide the necessary documents, the court can order that he/she provide them, we can send the party subpoenas with a detailed list of documents that are needed and outstanding. If your spouse does not comply with the subpoena, we can also send them to all the financial institutions where he/she does their banking. The third party is bound to communicate the documents prior to the court date and or attend court to provide them. A subpoena is a court order. Therefore, if the documents requested are not provided there are consequences to a breach of a court order. The necessity to have to take these additional measures to obtain what should have been provided, can lead to an opening to request a provision for cost. A provision for cost is a sum to cover portion of your legal fees.
Answer Two spouses may wish to remain married but no longer live together. In this case, one of the spouses, or the two spouses together, may apply to the court for a legal separation, technically known as a separation from bed and board. This option is not available to spouses in a civil union.
Unlike divorce, a legal separation does not break the bonds of marriage, therefore the consequences of marriage remain in effect. The spouses still owe each other respect, fidelity, assistance and may also remain bound by some additional clauses in their marriage contract.