Expertise / Family Protection of the family residence

In the context of a separation, whether you are the sole owner or your spouse is the sole owner of the family residence, you may have questions about your rights and obligations with regard to said residence. 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 residence protection?

Family residence protection is available to spouses and civil union partners. It does not apply to de facto spouses. Protection of the family residence is designed to protect the spouse who does not own the family residence in cases where the owner spouse wishes to sell or rent it without his or her spouse’s consent.

Family residence protection applies to only one residence. It applies to the residence chosen by the spouses to be their principal residence. Generally speaking, this is the residence where family members live and where they carry out their main activities. It can be a house, a condo or even an apartment.

Because of this protection under the Civil Code of Quebec, the owner spouse cannot sell or rent the family residence without his or her spouse’s consent. What’s more, in the event of separation, the non-owner spouse can obtain a right of use to continue residing in the family home.

The protection of the family residence also extends to the furnishings inside it that are used for household purposes. This also includes property used by only one spouse, but for the benefit of the household. However, property that is used exclusively by one spouse, or that is temporary, is not covered by this protection.

It should be noted that, when both spouses are co-owners of the residence, the consent of both will generally be required for acts covered by the protection. On the other hand, when both spouses are tenants, both will generally have to consent to the acts covered by the protection. Thus, the publication of a declaration of family residence and the notice of family residence to the landlord will be less relevant when both spouses own or rent the residence.

 

Protection of the family residence during the union

Limitations on what spouses can do with the family residence depend on the type of family residence.

 

Residence rented by one of the spouses

When the family residence is leased, the tenant spouse must obtain his or her spouse’s consent to sublet, assign or terminate the lease. Consent must be obtained in writing. The non-tenant spouse can therefore oppose these acts if they are carried out without his or her consent. The non-tenant spouse can therefore oppose these acts if they are carried out without his or her consent, and can obtain the nullity of the act and, if applicable, damages. However, this protection only exists on condition that the landlord has been informed by one of the spouses that the dwelling is their family residence. Only one of the spouses may give notice of family residence to the landlord, with no obligation to notify the other spouse. It is recommended that notice of family residence be given in writing to facilitate proof in the event of a dispute.

 

Residence owned by one of the spouses

When one of the spouses is the sole owner of the family residence, he or she cannot perform certain acts such as selling, giving, exchanging, encumbering with a real right or renting the residence without the consent of the other spouse. It is recommended that the non-owner spouse register a declaration of family residence in the land register. If a deed is executed without the consent of the non-owner spouse, even though the declaration has been registered, he or she may request that the deed be declared null and void. In cases where a deed is executed without the consent of the non-owner spouse and a declaration of family residence has not been registered, the latter may only claim damages.

 

The furniture

As with the residence owned by one of the spouses, the spouses may not sell, give, exchange, hypothecate or even transport furniture out of the residence without the consent of the other spouse. If an act is performed without the consent of one of the spouses, he or she may obtain nullity or damages.

 

Judicial authorization in the absence of consent

In cases where the landlord or tenant spouse is unable to obtain consent, or where his or her spouse refuses, he or she may apply to the court for authorization to perform the act for which the consent of the other spouse is required. The owner or tenant spouse must prove that his or her spouse’s refusal is not in the family’s best interests. Authorization is given by the court and relates to a specific act. Consequently, the court cannot exempt the owner or tenant spouse from his or her obligation to obtain his or her spouse’s consent for other future acts.

 

Protecting the family home in the event of separation

Certain rights may be conferred on one of the spouses, usually the non-owner, in the event of separation over the family residence or furniture. The rights that can be granted by the court are as follows:

  • Grant the lease to the non-tenant spouse and release the tenant spouse;
  • Granting a right of use over the family residence when the non-owner spouse obtains custody of a child;
  • Retain use of the family home and property during divorce proceedings.

The granting of the right to use the family residence or furniture is decided by the court. The court has discretionary power to make the decision, regardless of whether a declaration of family residence has been issued. The criteria to be assessed by the court are mainly the following:

  • The length of time the residence has been the family home;
  • Custody of the children;
  • The age of the children;
  • The financial situation of the parties;
  • The award of alimony between former spouses;
  • The award of a compensatory allowance.

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