Expertise / Family Division of Family Assets

Are you facing a marital separation and have questions about the assets you own and whether they will be shared between you and your spouse? We’re here to help.

While many questions can be answered with the help of the guides, sample letters and forms in our legal toolkit, an independent jurist affiliated with PSP Legal will always be happy to help you by answering any questions you may have.

Of course, if you prefer to have an experienced practitioner take charge of your situation and intervene directly and quickly on your behalf, you can also request that one of the independent jurists affiliated with PSP Legal represent you by clicking here.

 

What is family patrimony?

The division of family assets is a direct effect of the dissolution of the matrimonial bond. It therefore applies automatically to the spouses, without being provided for in any contract. What’s more, it cannot be waived or derogated from prior to separation. Since it is governed by the Civil Code of Québec , it applies only to spouses and civil union partners. As a result, de facto spouses do not benefit from this codified protection. Other people may also be excluded from family patrimony protection, notably those who were married before the creation of the family patrimony (i.e., before July 1, 1989) and who signed a renunciation before a notary before December 31, 1990.

Family patrimony is a form of protection designed to prevent one of the spouses from becoming impoverished as a result of separation. Its purpose is to share certain gains accumulated during the marriage of the spouses, regardless of their matrimonial regime.

It will be possible to waive the division of the family patrimony after the marriage, i.e. at the time of dissolution of the union. To be able to renounce, the spouse must know the value of his or her rights in the family patrimony. The act of renunciation can be made unilaterally by notarial deed or by judicial declaration. The criterion taken into account in the decision will be the free and informed consent of the renouncing spouse.

 

Included and excluded assets

Partition of the family patrimony is expressed as a right of claim, i.e. the disadvantaged spouse is paid a sum by the other spouse, and therefore does not become the owner of the property. Instead, he or she becomes a creditor of his or her ex-spouse, giving rise to a personal right of recourse if the specified sum is not paid. 

 

1- Assets included in the division of the family patrimony

This includes the following assets: 

  • Family residences;
  • Furniture used by the family to furnish their homes;
  • Vehicles used for family travel;
  • Pension plan benefits accumulated during the marriage;
  • Earnings registered during the marriage in each spouse’s name under the Act respecting the Québec Pension Plan.

The spouses do not have to be co-owners of the family residence for it to be included in the family patrimony. As with furniture and vehicles, only one of the spouses needs to be the owner for the property to be included.  Furthermore, since this list is exhaustive, no property can be added or subtracted from it.

 

2- Property excluded from family patrimony

Several items of property are excluded from the family patrimony. First of all, property inherited or donated to one of the spouses, before or during the union, is automatically excluded from the family patrimony, even if it is used for family purposes.

Other assets may also be excluded:

  • Cars for the exclusive use of one spouse;
  • businesses;
  • Farms, except for the residential portion;
  • Children’s education funds;
  • Earnings registered in the name of each spouse under the Act respecting the Québec Pension Plan, when the dissolution of the union results from death;
  • Accumulated rights under a pension plan that entitles the surviving spouse to retirement benefits, if the dissolution of the union results from death.

However, it should be noted that certain assets excluded from the family patrimony will be shared with the matrimonial regime.

 

3- Three stages in establishing the value of the family patrimony assets to be shared

Each spouse will establish his or her own family patrimony as follows:

  1. Determine the gross value of all assets;
  2. Calculate the net value of the assets (i.e. deduct the remaining debts for each asset);
  3. Determine the divisible value of assets by deducting applicable deductions.

Certain deductions are possible when calculating the divisible value, notably for assets owned at the time of the union, when there has been an increase in value, a contribution made to the asset during the union, or the re-investment during the marriage of an asset from the family patrimony. Thus, if one of the spouses was the sole owner of the family home at the time of the marriage, he or she may be entitled to a deduction.

 

Application for unequal division

There is one exception to the rule of equal division of the family patrimony. It is possible for one of the spouses to file an application for unequal division. He or she must demonstrate to the judge that an equal division would cause him or her real prejudice. Circumstances such as a very short marriage, when the other spouse loses or liquidates property in a deplorable manner, or when the other spouse does nothing and instead lets himself or herself live at the expense of the other spouse, are all examples of this.

 

How we can help

Our legal toolkit includes a variety of online resources and links to templates and guides to help you better understand your obligations.

However, should the Legal Toolkit prove insufficient in your situation, you can obtain additional assistance by speaking with one of PSP Legal’s affiliated jurists:

Of course, if you prefer to have an experienced practitioner handle your situation, you can always request that one of the independent jurists affiliated with PSP Legal intervene on your behalf by clicking here. He or she will then be able to intervene directly and rapidly on your behalf by:

  • Preparing, negotiating and drafting applications, procedures or any other legal documents related to your situation;
  • Assisting and advising you on your legal rights and obligations;
  • Representing you before the courts when legal action is taken;
  • Guiding you through the choices available to you, leading to a fair and satisfactory solution.

 

PSP Legal, because you deserve expert advice!

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