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Bibliothèque et Archives nationales du Québec. Cette capture de site Web a été effectuée le 10 août 2020 à des fins de préservation par Bibliothèque et Archives nationales du Québec.

Partition of the family patrimony

This section reviews the division of property between spouses based on the rules governing family patrimony. For more detailed information on the rules for the division of property, see the following topics:

Method of partition

The family patrimony is partitioned through:

  • a transfer of money
  • a transfer of property of equal value to the amount owed to the other spouse

When the family patrimony is partitioned, the court may assign property specifically to either spouse.

The court may also require a guarantee in the form of property or an amount of money. If a spouse fails to comply with the requirement, the court may order the seizure of the property or money.

Rules of partition

Following a legal separation or divorce or the dissolution of a civil union, the property making up the family patrimony is divided between the spouses. This means they each get an equal share of the monetary value of the property, without necessarily dividing the property itself.

First, the rules governing the partition of the family patrimony are applied, followed by the specific rules for the couple's matrimonial regime or civil union regime

Calculation

The first step is to determine the market value of all the property in the family patrimony.

Next, the net value of the patrimony is calculated by subtracting:

  • any debts contracted to acquire, improve, maintain or preserve the property in the family patrimony;
  • some other amounts, such as the net value of any property that was already owned by one spouse prior to the marriage, and the appreciation in the value of that property during the marriage.

The remaining net value of the family patrimony is then divided equally between the spouses.   

What happens to the property not included in the family patrimony?

Any property not included in the family patrimony (such as buildings and land, bank accounts, shares, bonds, etc.) is shared between the spouses using the rules governing their matrimonial regime or civil union regime.

Payment by one spouse to the other

A spouse who owes money to the other spouse following the partition of the family patrimony can pay:

  • in cash;
  • by transferring the ownership of property.

Payment in instalments

If payment of the total amount owed could cause hardship for the spouse making the payment, the judge may order payment of the amount in instalments over a period of not more than ten years.

In fact, the judge can impose any measure needed to make sure that the partition is completed and that the judgment is applied.

Disagreement

If the spouses do not agree on the partition of the family patrimony, the court may allocate some property specifically to either spouse.

Examples:

  • Ownership of the family home;
  • Ownership of a cottage;
  • Ownership of a boat.

Compensation for a spouse disadvantaged by the disappearance of property prior to partition

If property has been removed from the family patrimony, without being replaced, in the year preceding the date of the partition, the court may order that compensation be paid to the spouse who is disadvantaged by its removal.

The court may also order the payment of compensation if the property has been removed more than a year before the patrimony is partitioned, if its removal disadvantaged the other spouse.

Situations in which an equal partition cannot be applied

On application, the judge may decide not to impose an equal partition if it would create an injustice for one of the spouses, for example because of:

  • the short length of the marriage or civil union;
  • the dilapidation of property by either spouse;
  • the bad faith of either spouse;
  • etc.

Renunciation of the family patrimony

In some circumstances, it is possible for the spouses to renounce their rights in the family patrimony.

Dissolution of a marriage or civil union by the death of a spouse

If a marriage or civil union is dissolved by the death of one of the spouses, the property excluded from the family patrimony is partitioned using the rules governing the spouses' matrimonial regime.

Settlement of a succession

Before settling a succession, the executors must first partition the family patrimony.

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