Divorce and family patrimony

A look at what each spouse is entitled to

By Alice Popovici

Daniel and Rebecca have been married for just 5 years and have no children. Daniel is a police officer and Rebecca a teacher. For the last few months the couple has been having a very difficult time as a result of their failed efforts to conceive a child.

As a result of these difficulties, Daniel expressed his intention to obtain a divorce. Daniel comes from a very traditional family and having children is extremely important to him. Although children are important to Rebecca, she feels content with no children in her future. Rebecca comes from a very large family so she has plenty of nephews and nieces to spend time with.

The couple owns a condominium, which was purchased by Daniel prior to the marriage. After Daniel announced that he wanted a divorce, Rebecca has become increasingly worried with regards to her finances, especially because she has been contributing to the payment of the mortgage for the last 5 years. Both parties purchased furniture and appliances, which still fill up the family residence.

Considering the parties’ separation after a marriage that has lasted 5 years, what will Rebecca obtain at the time of their divorce?

Family Patrimony: What is included?

Most wonder what is actually included in the family patrimony and whether assets owned by just one spouse are included in the calculations. The following property is included in the family patrimony: the family residence (whether it is the main residence and/or a cottage), the residence’s furniture, motor vehicles used for the family, and benefits accrued during the marriage under a retirement plan. These items must be owned by one of the spouses in order to be included in the calculation. Please note that under certain circumstances the rights conferred by the use of a family residence for example can be included in the equation even if the spouses are not the owners of the property.

In order to establish the value that each spouse has a right to, we must first determine the value of the listed property as at the date of marriage and as at the date of separation. The spouses will equally share any increase of value of the property during this period.

Any remaining property not included in the list above will be categorized in accordance with the matrimonial regimes of the spouses. In Quebec, there are two possible regimes namely, the Partnership of Acquests and Separation as to Property. In the above-mentioned case, if Daniel and Rebecca did not sign a marriage contract before a notary, the legal regime of the Partnership of Acquests will automatically apply to them. This means that any remaining property acquired during their marriage will also be divided equally between them.

How will Rebecca determine what value she will obtain from the condominium of which only Daniel is the owner?

Daniel will first have to establish the market value of the condominium at the time of marriage and the mortgage or any other debts related to the property. Once the net value is established as at the date of marriage, it will be deducted from the net value of the property at the time of separation.

Will Rebecca receive compensation for her financial contribution during the marriage?

Yes. Considering that the property likely increased in value over the 5-year period, Rebecca will obtain 50% of the increase in value less Daniel’s contribution (net value) at the time of marriage.

What happens to the furnishings inside the family residence?

Daniel and Rebecca will have to divide the furnishings equally between them. Usually, this is done on an amicable basis in consideration of the value of the property included in the family residence. In the event that Daniel and Rebecca cannot agree, they will each have to prove the value of the movables and justify why they should be awarded said property.

What happens to Daniel’s pension?

The pension will be evaluated in the same manner as the family residence. Specifically, Daniel will obtain a report from his employer confirming the amounts that were accrued from the date of marriage to the date of separation. Rebecca will have a claim for half the value of said contributions made during their marriage.

Photo by Karen Bryan via StockPholio.net

Alice Popovici is a Montreal lawyer who practices family law. She can be reached at 514 448-6666 or at alice@popovicifamilylaw.com