A notary will help you choose the matrimonial regime (partnership of acquests or separation as to property) that best suits your situation and needs. They can even adapt it to your needs, in compliance with the applicable rules.
There are two types of matrimonial regimes in Quebec: the regime of separation as to property (by marriage contract) and the regime of partnership of acquests (with or without a marriage contract). It is possible to switch regimes after getting married, but the matrimonial regime will have to be changed and the old regime dissolved.
There are two types of matrimonial regimes: the regime of separation as to property (by marriage contract) and the regime of partnership of acquests (with or without a marriage contract).
The regime of partnership of acquests
Since July 1, 1970, the matrimonial regime of partnership of acquests is the legal regime that has applied to all married spouses with no marriage contract. It also applies to spouses in a civil union who have not contractually established their regime prior to their union ceremony. However, if desired, it is also possible to sign a marriage contract for a partnership of acquests.
In a partnership of acquests, there are two types of assets: “private property” and “acquests.” Private property is usually acquired before the marriage or civil union, or received during the regime by inheritance or through a gift. All property not considered private by law is an acquest.
Under the partnership of acquests, each spouse administers their own private property and acquests. In the event of divorce or death, the spouses may claim an amount corresponding to the partitionable value of the acquired property according to the rules set out in the Civil Code of Québec. The consent of the other spouse is necessary in order to make gifts of acquests.
Regime of separation as to property
To be married under the regime of separation as to property, the spouses must sign a marriage contract at a notary’s office, preferably before getting married.
Under the regime of separation of property, each spouse administers their own property, referred to as “private property.” Each person is the owner of the property in their own name. For this reason, spouses should keep all documents that establish ownership of each piece of property, such as receipts and titles of ownership.
The regime of separation of property has the advantage of ensuring the complete autonomy of spouses and protecting each spouse against the errors or financial difficulties of the other. In the event of divorce or death, however, the partition of the property that is part of the family patrimony applies to all married couples, regardless of their matrimonial regime. However, in the case of divorce, the regime of separation as to property can result in some inequalities for the financially weaker spouse.
The regime of separation as to property is often the choice of couples who are remarrying, who own businesses or who want to be economically independent.
Note: Regardless of the matrimonial regime, a spouse who is the sole owner of a family residence cannot sell or mortgage it without the consent of the other spouse.
There are two types of matrimonial regimes in Quebec: the regime of separation as to property (by marriage contract) and the regime of partnership of acquests (with or without a marriage contract).
The value of the assets that make up the family patrimony will be partitioned between the spouses upon divorce.
Upon divorce, the spouses have the right to partition the value of the family patrimony. The family patrimony is made up of the following property owned by either spouse:
Property for family use:
- Family residences
- Rights that confer use of family residences, such as a right of habitation
- Movable property of the family
- Motor vehicles used for family travel
Pension benefits accumulated during the marriage:
- Benefits accrued during the marriage or civil union under a retirement plan (except, in the event of death, a retirement plan governed or established by a law that grants a right to death benefits to the surviving spouse)
- The earnings of each spouse during the marriage or civil union pursuant to the Act respecting the Québec Pension Plan or similar programs (except in the event of death)
Property excluded from the family patrimony
Any property received by either spouse before or during the marriage or civil union by inheritance or through a gift is excluded from the family patrimony.
The value of the family patrimony is established on the basis of fair market value. However, certain deductions are allowed. Since the calculation of these deductions can sometimes be complex, it is best to consult the appropriate legal specialist.
When it comes to the family patrimony, it is highly advisable to consult a notary if:
- You are planning to get married or enter into a civil union, in order to establish the value of the property you own at the time of marriage. The notary can establish a list that will then be included in a notarial act, like an inventory or a marriage contract.
- You are already married or in a civil union, in order to have the notary explain what the family patrimony consists of. If necessary, you can make changes to your will based on this information about your family patrimony.
During the marriage, the rules on the partition of family patrimony do not deprive the spouses of their powers over the property that belongs to them.
Each spouse may freely dispose of their own property, subject to the following restrictions:
- If the buildings comprising the family residence consist of fewer than five dwellings, the owner spouse may not sell or mortgage the residence without the written consent of the other spouse
- The spouse who owns movable effects that are used in the household may not sell, mortgage or transport them outside the family residence without the written consent of the other spouse
- Under the regime of partnership of acquests, a spouse cannot make gifts of any acquests during their lifetime without the consent of the other spouse
When is the family patrimony property partitioned? The property that makes up the family patrimony is partitioned in the following instances:
- Separation from bed and board
- Nullity of marriage
- Death of one of the spouses
How is the partition carried out? The value of the family patrimony is generally split equally, unless the court decides on an unequal partition in exceptional circumstances. A mediating notary will be able to guide and advise spouses who want to end their marriage.
Can the partition of family patrimony be renounced? The partition of the family patrimony can be renounced by the spouses, but this cannot be done in advance. This can only be done upon separation from bed and board, divorce, nullity of marriage or the death of one of the spouses, and only once the spouses have taken cognizance of the value of the family patrimony.
All married couples are subject to the rules of family patrimony.
Family patrimony was added to the Civil Code of Québec in 1989 in order to put an end to certain inequalities, particularly in cases when couples had opted for a regime of separation as to property. This would often happen when one of the spouses had not entered the labour market in order to care for children, for example. Family patrimony rules thus attempt to foster economic equality between spouses.
Upon divorce, the law imposes an equal division of the value of the property that makes up the family patrimony. Since family patrimony rules apply to all spouses, the future spouses cannot renounce them in advance.
In the event of separation, consult a mediating notary. Over the course of family mediation sessions, the notary will help you carry out the partition of the property. They will also be able to file the joint application for divorce or separation from bed and board without you having to go to court.
To whom do the rules of family patrimony apply? All legally married and civil union couples are subject to the rules of family patrimony regardless of:
- The date of the marriage
- The matrimonial regime
- The marriage contract
- Whether or not children are born of the marriage
Note: De facto spouses are not subject to the partition of family patrimony.