Married couples: Rules governing the division of property in the event of a divorce

Some of the property owned by either spouse is included in what is called the “family patrimony.”

For example:

• the residences of the family, i.e., the main and secondary residences used by the family during the marriage (e.g., house, cottage, condo)
• the furnishings and household effects used by the family in these residences (e.g., household appliances, furniture, decorative items)
• the motor vehicles used for family travel (e.g., car, truck, motorcycle)
• the right of use held by one spouse of a residence that he or she does not own (e.g., the use of a condo held by a company that he or she directs)
• the registered earnings of each spouse during the marriage under the Québec Pension Plan (QPP) or a similar plan
• the benefits accrued by each spouse during the marriage under a retirement plan (e.g., pension funds, RRSPs, etc.)

DID YOU KNOW?

Some of the property in this list may be “excluded” from the family patrimony. This is the case, for example, if the property was given to one of the spouses or inherited.

To learn more about the property excluded from the family patrimony, talk to a lawyer or a notary.

Property Included in the Family Patrimony (Éducaloi)

In the event of a divorce, the net value of the property included in the family patrimony is usually divided equally, regardless of which spouse owns the property.

The value of the rights and benefits included in the family patrimony is also divided equally. The assistance of an accountant or an actuary may sometimes be needed to assess the partitionable value.

DID YOU KNOW?

Some spouses are allowed to recover sums invested in the family patrimony during the marriage if they come from property they owned before the marriage, a gift, or an inheritance. The spouse is then said to be entitled to a “deduction.”

To learn more about deductions or other exceptions to the principle of equal division, talk to a lawyer or a notary.

Dividing the Family Patrimony (Éducaloi)

If both spouses are domiciled in Quebec, the rules of partition of the family patrimony apply automatically, unless they have signed an act of renunciation, also called an “opt-out agreement,” before a notary prior to January 1, 1991.

If one of the spouses is domiciled outside of Quebec, other factors must be considered to determine whether the rules of partition of the family patrimony apply. If you’re in this situation, talk to a notary or a lawyer to find out which rules apply.

All property not included in your family patrimony (e.g., bank accounts, shares on the stock market, commercial buildings ) is governed by the rules of partition of the couple’s “matrimonial regime.”

In Quebec, the most common matrimonial regimes are the partnership of acquests, separation as to property, and the community of property.

In the event of a divorce, the value or, in some cases, the ownership of this property is divided, based on the rules of the couple’s matrimonial regime.

Once the partition is complete, the matrimonial regime is said to be “dissolved.”

Matrimonial Regimes: Partnership of Acquests (Éducaloi)

Matrimonial Regimes: Separation as to Property) (Éducaloi)

Matrimonial Regimes: Community of Property (Éducaloi)

Situation 1: You have no marriage contract

If you did not sign a marriage contract stipulating how your property will be divided in the event of a divorce, the default legal matrimonial regime, also known as the “legal matrimonial regime,” applies.

In Quebec, the legal matrimonial regime for spouses married after July 1, 1970, is the “partnership of acquests.” For those who were married before that date, it is the “community of property.”

If one or both spouses were domiciled outside Quebec at the time of the marriage, a foreign matrimonial regime may apply. If you’re in this situation, talk to a notary or a lawyer to determine your matrimonial regime.

Situation 2: You have a marriage contract

If you signed a marriage contract, you may have defined your matrimonial regime in it. Your contract might contain customized rules, or it might just refer to a known regime, such as “separation as to property.”

If you can’t find any information in your marriage contract about the division of your property in the event of a divorce, the default legal matrimonial regime applies to you (see “Situation 1: You have no marriage contract”).