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Family Law

Dividing your property

Aside from issues involving children and the residence, spouses also have to worry about dividing the property they own. Some of this property forms part of the family patrimony and its division is governed by very detailed rules. What happens to the other property? How can a spouse obtain access to belongings in the other spouse’s residence? When and how will all this property be divided?

A couple often manages their finances together, sharing a joint account, credit cards, and utility bills (telephone, electricity, etc.). What happens to the bank accounts when they separate? Who can use the credit card? Who pays the bills?

In this Infosheet, Éducaloi describes the rules that apply when dividing other property the spouses own.

Will my spouse and I have to split all of our property?

No, only property included in the family patrimony must be divided. Family patrimony division is mandatory, unless spouses waive their right to a division or opted out of family patrimony within the deadline when the rules came into force in 1989.

Property excluded from the family patrimony is subject to the rules of the spouses’ matrimonial regime.

Please note that de facto spouses do not have a family patrimony. As a result, neither spouse is entitled to a share in anything owned by the other spouse, no matter how many years they lived together (unless they signed a cohabitation agreement providing for the division of their property).

What property is included in the family patrimony?

The following property is included in the family patrimony regardless of whether it is owned by one or both spouses, provided the owner spouse did not inherit it or receive it as a gift:

• the family’s main residence;
  
• the family’s second residence(s);
  
• furniture in these residences;
  
• automobiles used for the family;
  
• amounts accumulated during the marriage or civil union in a retirement plan, including any RRSPs;
  
• earnings registered during the marriage or civil union on behalf of each spouse under the Act regarding the Québec Pension Plan or any equivalent plan.

All other property (for example, bank accounts) does not form part of the family patrimony.

To find out more, see our Infosheet entitled Family patrimony  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/147/).

Ever since my spouse moved out, I don't have enough money to provide for myself and my children. What can I do?

It may be a good idea to ask friends and family to help you out temporarily. You can also apply for social assistance. Your level of eligibility at the time of your request may result in your being granted "conditional assistance", meaning you will have to pay the government back once you start collecting support from your ex.

Use any credit you have wisely and make sure to keep proof of all your transactions. Contact your creditors and ask about possible arrangements. In short, use all available resources and set your priorities (for example, pay your rent before your credit card).

At the same time, you can institute proceedings to obtain a judgment ordering your spouse to pay you support and/or certain expenses, such as the rent, mortgage, hydro, etc.

Will I be reimbursed if I pay expenses that my spouse should have paid?

In theory, your spouse should reimburse you for whatever you had to pay on his behalf, whether under an agreement or a judgment (this issue is normally addressed in the final judgment). Once again, you must show common sense and set priorities. If you are finding it really difficult to make ends meet, pay what you must so you don’t risk losing a major asset or getting into trouble with your creditors. It's also a good idea to find out what kind of arrangements you can make with your creditors.

My spouse emptied out our bank account and our house! Is this allowed?

It is not always easy to figure out who owns what. But be careful - taking something that obviously belongs to your spouse (or to both of you) may be considered a theft. You should think twice before taking a valuable object against your ex's wishes, or without telling him. Ideally, you should try and reach an agreement with him. If this isn’t possible, be patient and wait for the court to decide.

In addition, an ex-spouse who treats the couple’s money and property as his own, cleans out the bank account, uses his ex's credit card without her permission, or empties the house of all the furniture may be charged with theft or fraud.

Married spouses have extra protection. Under the rules on the family residence, it is forbidden for one spouse to sell, give or even remove from the house the furniture, fixtures or other items that normally belong in the house without the permission of the other spouse. This includes electrical appliances, electronics, tools, art, etc.

My spouse lives in our old place, but I still have the key. Can I enter the house without his permission to pick up some important stuff I forgot?

It all depends on the circumstances. In the case of married couples, their home is considered to be their "family residence". The court can rule that one of the spouses gets the exclusive use of the family residence. Where no such judgment exists, both spouses can use the home, and both are legally entitled to access it regardless of which spouse owns or rents it. The situation may differ if one of the spouses threatens the other’s security. The threatened spouse can either leave the residence or ask the police to remove the threatening spouse.

The concept of family residence does not apply if the spouses are not married. It is up to the spouse who owns or rents the place to decide who can enter. The other spouse is simply considered a guest. The owning or renting spouse can withdraw her invitation at any time and ask the police to remove the “intruding” spouse, particularly if he is threatening or violent. The renting or owning spouse must exercise this right reasonably if the other spouse has done nothing wrong. In fact, the police should not intervene if the removal is abusive, for example, by removing one of the spouses on Christmas Eve after they have lived together peacefully for years.

However, the spouse is committing an offence if he returns without permission once the invitation has been withdrawn, or forces the door open.

Both spouses are entitled to remain if they both own or rent the residence. The situation may differ if one of the spouses threatens the other’s security, in which case the threatened spouse can leave the residence or ask the police to remove the threatening spouse.

That said, constantly watching the other spouse, continuously calling them or insisting on visiting the residence may be considered an offence, such as harassment or intimidation, even if the person owns or rents the place in question. It is best to be patient, to warn the other spouse and get her consent before entering the residence, regardless of your legal position.

One of the spouses may find this situation frustrating, but the law prohibits citizens from taking the law into their own hands. Use the existing legal procedures if, for example, you want access to your children or to use the residence. To learn more, consult the Infosheet entitled Instituting legal proceedings.

Finally, the situation is totally different if one of the spouses is prohibited by a condition of release from going to, or approaching, the other spouse’s residence, regardless of the spouses’ status. To learn more, consult the Infosheet entitled Conditional release.

To learn more on this subject, consult the Infosheet entitled Police and legal intervention in cases of conjugal violence.