Divorce

The partition of assets following a divorce requires special attention. Several factors must be taken into account, like to which categories of goods the assets belong. The partition can also be subject, in certain cases, to compensation.

 

Marriage contract

The marriage contract, usually signed a few days before the solemnization of marriage, defines the matrimonial regime and the partition of assets in case of separation or divorce. If no marriage contract was signed before the solemnization of their marriage, the matrimonial regime of the spouses is governed by the law of their domicile at the time of their marriage.

Matrimonial regime

The most common matrimonial regimes are the matrimonial community, the separation as to property and the partnership of acquests. A marriage solemnized in Québec without prior marriage contract, as it is often the case, is governed by the matrimonial regime of the partnership of acquests.

Partnership of acquests

According to the regime of partnership of acquests all property issued from incomes earned during marriage belong to both spouses, no matter which one holds the legal ownership of the property. Property owned by a spouse before marriage, as well as inheritance and gifts are considered private property.

Family patrimony

Spouses domiciled in Québec are subject to the provisions of family patrimony. According to the rules of family patrimony, certain types of property must be equally divided between the spouses regardless of which one of them holds a right of ownership in that property and regardless of their matrimonial regime. The spouses may not, by way of a marriage contract or otherwise, renounce their rights in the family patrimony.

The family property is composed of the residences of the family, including secondary residences, the movable property furnishing and decorating the family residences, the motor vehicles used for family travel and the benefits accrued during the marriage under a retirement plan.

Difference between ownership, family patrimony and partition of property

The difference between ownership, family patrimony and partition of property may be sometimes confusing.

Here is an example:

At the time of marriage the husband owned a house, a summer camp and a car while the wife owned a car. The house and the summer camp were used by the family while the husband’s car was strictly used for his business travels. The wife’s car was used for the family. Each one of those properties is still registered to the sole name of the spouse who owned it before marriage.

According to the rules of the familial patrimony the house, the summer camp and the wife’s car are all part of the family patrimony, no matter which one of the spouses owned them before the marriage and no matter the provisions of a marriage contact they may have signed before or after marriage. The husband’s car however is not part of the the family patrimony since it is not usually used for the family.

For the purpose of the family patrimony partition however, only the increase of value of those properties during the marriage will be taken into account in the calculation of the value of the family patrimony.

Unequal partition of the Québec Pension Plan

It is possible, under certain circumstance to obtain an unequal partition of the Québec Pension Plan or similar plans if an equal partition would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them.

Compensatory Allowance

It is possible for a spouse to obtain at the moment of partition a compensatory allowance as compensation for his or her contribution to the enrichment of the other spouse. This could be the case, for example, when one of the spouses worked without salary or for a reduced salary for the business of the other spouse resulting in an enrichment of the latter.