Expertise / Family Matrimonial Property Regimes

Before you sign your marriage contract, you may have questions about the various matrimonial regimes available to you. If so, 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 are matrimonial property regimes?

A matrimonial property regime is a set of legal or contractual provisions governing the property relations between spouses.

It’s important to remember that certain assets may be included in the family patrimony, and that these will be divided when the divorce decree is obtained. However, for other assets that are not included in the family patrimony, we need to determine the applicable matrimonial regime with a view to their division/separation. It should also be noted that only spouses and common-law partners in a civil union are subject to the matrimonial regime. They can choose the matrimonial regime in their marriage or civil union contract. Otherwise, the regime of partnership of acquests will apply. In fact, the Civil Code of Quebec stipulates that spouses who have not established their regime in a marriage contract prior to the solemnization of their union will be subject to the regime of partnership of acquests.

Future spouses are therefore free to choose their matrimonial regime through their marriage contract. They have three choices: partnership of acquests, community of property and separation of property. It is also possible for future spouses to choose a foreign matrimonial regime. However, in the event of a conflict, the provisions of the regime must be invoked and proven. Otherwise, Quebec law will apply.

 

The different ways of terminating a matrimonial regime

There are 5 ways to terminate a matrimonial regime, which will result in the separation of the spouses’ assets, depending on the type of matrimonial regime applicable.

– Divorce;

– Death of one of the spouses;

– Change of matrimonial regime;

– Nullity of marriage;

– Legal separation.

 

The 3 matrimonial regimes

As previously mentioned, the family patrimony cannot be considered or divided again in the matrimonial regime. For example, an income property will not be included in the family patrimony.

 

1- Partnership of acquests

The regime of partnership of acquests is the legal regime applicable in the absence of a marriage contract, or when there is nothing in the marriage contract concerning the matrimonial regime. Thus, all spouses or civil union partners since July 1, 1970 are subject to this regime, unless they have agreed to another matrimonial regime by marriage contract. This is a participatory matrimonial regime, which means that both spouses contribute to it. It also allows both spouses to administer their own property during the marriage, subject to the protection of the family residence. The spouses are also each responsible for their own debts contracted before or during the marriage. However, they will be jointly and severally liable for debts incurred for the family’s day-to-day needs.

Consequently, property will be divided between the two spouses according to the rules of partnership of acquests in each of the situations where the matrimonial regime ends. First, there is the property proper to each spouse and the acquests. Unless the property is expressly qualified as proper property in the law, it will be acquest property.

 

Proper property, which will not be shared between the spouses, includes the following:

  • Property owned before the marriage;
  • Property received as an inheritance or gift;
  • Personal effects;
  • Work instruments necessary for the exercise of a profession;
  • Maintenance payments received;
  • Damages received as compensation for moral or physical injury;
  • Income from own business reinvested in it;
  • Goods acquired to replace own property;
  • Property acquired with more own property than acquests.

Acquests, on the other hand, are shared between the spouses and include :

  • Salary;
  • Income from investments made during the marriage;
  • Income from one’s own business not reinvested in it;
  • Assets acquired with more acquests than propres.

An inventory of each spouse’s “acquêts” and “own property” will be drawn up. Next, the rewards owed by the mass of one’s own property to that of acquêts will be calculated, and vice versa. In addition, the debts attached to the property will also be taken into account in the calculation.

 

2- Separation as to property

The matrimonial regime of separation as to property is a separative regime. During the marriage, the spouses may dispose of their property as they wish, while respecting the protection of the family residence. With regard to debts, each spouse is liable for his or her own debts incurred before or during the union. However, both spouses are jointly and severally liable for debts incurred for family needs.

At the end of the matrimonial regime, the value of property not belonging exclusively to one spouse will be divided equally between the two spouses. Other assets belonging to only one of the spouses will remain with their owner, i.e. there will be no sharing. In other words, there is no sharing.

 

3- Community of property

The community of property matrimonial regime is that which prevailed prior to July 1, 1970. As a result, all couples married or civilly united before this date benefit from the community of property matrimonial regime, unless they have stipulated another regime in their marriage contract. It is still possible to choose this regime in the marriage contract.

 

Division of property into three categories

  • Personal property, which includes gifts, inheritances, compensation and certain real estate;
  • Joint property, which includes debts, property owned on the day of marriage and property acquired during the marriage that is not owned by the couple;
  • The wife’s reserved property, which includes her personal salary, savings, property and real estate acquired with her salary.

During marriage, property rights are different for men and women. The husband administers, uses and may dispose of his own property. He administers community property, but is subject to certain restrictions, notably the need to obtain his wife’s consent before selling, donating or mortgaging community property, family furniture or other valuable assets. The wife may also administer, use and dispose of her own property. She administers her reserved property alone, but must obtain her husband’s consent to sell, give away or mortgage any reserved property.

At the end of the matrimonial regime, only the wife has the choice of renouncing the division of the matrimonial regime. If she refuses, she retains only the reserved property and the husband retains the common property. If she accepts, the common property and the reserved property will be shared equally between the two spouses. The spouses thus become co-owners of the property that is shared, contrary to the regime of partnership of acquests.

It is important to note, however, that this type of matrimonial regime is becoming increasingly rare. 

 

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!

Ressources Receive our newsletter

Subscribe to our newsletter