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Married and Civil Union Spouses - The consequences of your union

Partnership of Acquests

Have you chosen to have a civil union or to get married? Not sure if you should sign a marriage or civil union contract? Even if you don’t sign one, you are still subject to a matrimonial or civil union regime–it is called partnership of acquests.

In this Infosheet, Éducaloi explains what partnership of acquests involves and how property is divided if the spouses break up, or if one of them dies.

What is partnership of acquests?

Partnership of acquests is one of the three regimes applicable to couples who reside and marry or have a civil union in Quebec.

The two other matrimonial or civil union regimes are:

• community of property;
  
• separation as to property.

Specific rules govern each of the three regimes regarding the management and division of property and debts between spouses.

You can decide to choose one of these three regimes by signing a marriage or civil union contract. But if you do not, the partnership of acquests will automatically apply to you both, since it has been the legal regime in force in Quebec since July 1, 1970.

What are the differences between family patrimony and partnership of acquests?

Family patrimony arises directly as a result of civil union and marriage: it applies to all civil union or married couples regardless of their matrimonial or civil union regime.

Partnership of acquests is a regime that applies to couples who have chosen it in a marriage or civil union contract or who have no contract.

If a couple separates or one spouse dies, the rules governing the partition of the family patrimony will be applied first, followed by the rules on partnership of acquests.

For example, any decisions regarding the family residence will be taken in accordance with the provisions concerning the family patrimony, regardless of your matrimonial or civil union regime. But if your family residence is also an income property (such as a duplex), only the portion used by the family will be partitioned according to the rules on family patrimony; the rented area will be partitioned according to the rules applicable to the particular civil union or matrimonial regime.

What happens if I separate from my spouse?

Your matrimonial regime is dissolved as soon as a separation from bed and board or divorce judgment is pronounced. For couples in a civil union, the civil union regime is dissolved by a judgment or a notarized common declaration of dissolution of the union.

The main effect of dissolution is the partition of property.

The partition of property belonging to the family patrimony must, therefore, be settled. As for the other property, each spouse will keep their own private property and may decide to accept their share in the other spouse’s acquests or waive this right. If they decide to partition the acquests, the assets will be shared as described in the question “How are acquests divided?” discussed further on.

What is private property?

Private property belonging to a spouse consists mainly of:

• assets already owned at the time of the civil union or marriage, no matter how they were acquired;
  
• assets received during the marriage or civil union as an inheritance or gift.

The following items are also considered private property:

• clothing, personal documents, wedding rings, medals, diplomas, and instruments required for that spouse's profession;
  
• insurance benefits relating to the private property;
  
• the right to support, disability pension, or other benefits of the same nature;
  
• compensation received for moral or bodily damages;
  
• rights or benefits as a specified beneficiary in a personal insurance policy (such as life insurance);
  
• rights or benefits as a beneficiary in a retirement or other annuity;
  
• assets acquired with both private property and acquests provided the value of private property used for the purchase is greater than half the total purchase price. For example, if two-thirds of the money you used to purchase land came from an inheritance (private property) and the other third came from money saved out of your salary (acquests), the land will be private property.

If you replace private property with another item, it will also be considered private property. For example, if you owned a dresser when you got married and you decide to sell it and buy another piece of furniture, this new piece of furniture will be private property.

What things does the law consider to be acquests?

The rule is simple: anything the law does not consider “private property” is an “acquest”. Acquests are the rule; private property is the exception.

The following are examples of items considered to be acquests:

• income earned during a civil union or marriage, including salaries;
  
• investment income, even if it comes from private property. For example, a $ 100,000 inheritance is considered private property, but the interest income earned from investing it is an acquest, unless the testator stipulated otherwise;
  
• business income not reinvested into the business, even if the business is considered private property because you owned it before marrying or entering into the civil union;
  
• assets acquired using both private property and acquests, provided that the value of the private property used for the purchase is equal to or less than half the total purchase price. For example, if half the money you used to purchase land came from an inheritance (private property) and the other half came from money saved out of your salary (acquests), the land will be an acquest.

Property will be considered to be an acquest if you cannot prove that it is private property.

Does my spouse have any say in the way I administer my assets and salary?

Autonomy of the spouses is one of the principles of partnership of acquests. Barring a few exceptions, both spouses can dispose of their assets and income as they see fit. For example, you do not need your spouse’s consent to spend part of your salary on clothes.

However, you cannot give away an acquest that is very valuable without your spouse’s consent. For example, if you buy a car for $30,000 using your own salary then decide to give the car to your friend for free, your spouse can have this gift cancelled.

Am I responsible for my spouse’s debts?

Each spouse is responsible for their own debts in a partnership of acquests, whether contracted before or during the civil union or marriage. This respects the underlying principle of the regime, which holds that each spouse is autonomous regarding his private property and acquests.

The exceptions to this rule are not related to the partnership of acquests, but stem from legal obligations that apply to all spouses. For example, one spouse may be responsible for paying the other spouse’s debt if the debt was incurred during marriage or civil union to provide for the family.

Can I change my matrimonial or civil union regime after getting married?

Whether married or in a civil union, spouses can choose to change their regime. For example, spouses married under partnership of acquests can change their regime to separation as to property by signing a marriage contract to this effect. This change basically dissolves the partnership of acquests (just as in cases of divorce or death).

It sometimes happens that only one spouse wants to change from partnership of acquests to separation as to property, while the other does not. The spouse can then ask the court to legally separate the property and the judgment that is eventually rendered will effectively dissolve the partnership of acquests.

What happens if one spouse dies?

If a spouse dies, the first step is to partition the property belonging to the family patrimony.

Assets must be partitioned because death dissolves the partnership of acquests. The surviving spouse will keep her private property and the property of the deceased spouse will go to his heirs.

If assets are to be partitioned, the net value of the acquests is determined as of the date of death and they are partitioned in the same manner as during a divorce or dissolution of a civil union. The surviving spouse may also ask that some family assets, such as the family residence or the household furniture, be given to her in payment.

The surviving spouse may waive her share of the deceased’s acquests. In this case, the heirs cannot demand that the surviving spouse’s assets be partitioned. If the surviving spouse accepts the partition of her assets, the heirs can still waive their right to ask for partition.

Why and how should I waive my share of my spouse’s acquests?

As previously mentioned, each spouse keeps their private property.

It is important to mention again that each spouse may accept or waive their share in the other’s acquests. The spouses make their decision independently of each other.

For example, one spouse may accept his share of the other spouse’s acquests, while the other spouse renounces her share of his.

A spouse may have many reasons for waiving his share in the other spouse’s acquests. Here are two good reasons:

• The net value of each spouse’s acquests is about the same. It will be more practical and faster for each spouse to waive his share in the other’s acquests.

• Your spouse has so much debt that the value of his acquests is negative. There is no interest in sharing the acquests.

Although it may seem unfair, this means that a spouse who has wisely accumulated acquests could be forced to share them with the other one, even if she has waived her share in the poorly administered acquests of her spouse.

A waiver can only be done by notarial act or by judicial declaration submitted to the court and forming part of a legal judgment of separation from bed and board, divorce, dissolution of civil union, or annulment of marriage or civil union.

It must also be published in the “Register of personal and movable real rights” within one year of the regime’s dissolution.

Note that a spouse may be deprived of his share in his spouse’s acquests under the following circumstances:

• he misappropriated or concealed acquests (for example, if he sold, hid, or gave them away);
  
• he wasted his acquests or administered them in bad faith;
  
• he interfered in the administration of his spouse’s acquests after the regime was dissolved and the latter waived her share in the former’s acquests.

As we can see, it is presumed in these situations that a spouse behaved inappropriately regarding the other’s acquests or ensured that virtually nothing would be left to share with his spouse.

How are acquests divided?

No specific legal conditions apply when accepting the partition of acquests. An acceptance may be written, verbal, or tacit.

The following steps must first be taken with respect to each spouse:

• An inventory of acquests, including property considered to be acquests and any debts relating to it, must be conducted.
  
  
• An inventory of private property, that is property that belongs solely to the spouse and any debts relating to it, must be done.
  
  
• The amount of compensation owed must be determined. Compensation is a means by which a spouse can recover an investment she made using private property in order to acquire an acquest (or vice versa).

For example, a spouse buys a piece of land for $85,000 using $40,000 from an inheritance (private property) and $45,000 that she saved from her salary (acquests). The land is therefore an acquest, but $40,000 will be added to the value of her private property as compensation for the amount that would ordinarily have been calculated as private property.

Although these steps can be very complex, it is necessary to carry them out before proceeding with the actual partition. They enable the net value of a spouse’s acquests to be established and this net value must then be partitioned equally between the spouses.

Net value can be partitioned either:

• in cash, in the form of a money payment; or,
  
• by a payment in kind, where an asset is transferred to the other spouse.

It may be in the spouses’ best interests to consult legal specialists such as lawyers or notaries in order to partition the partnership of acquests–in fact, we strongly recommend it.

Lastly, spouses who disagree can ask the court to partition the property and determine the terms and conditions of payment.

I regret having waived my share in my spouse’s acquests, is it too late to change my mind?

In theory, a waiver is irreversible. But you may be able to have it cancelled in court if you can prove one of the following:

• Your waiver is prejudicial–the result was so unequal between your belongings and those of your spouse that we can conclude you were taken advantage of.
  
• You waived your share in the acquests out of fear brought on by violence or threats.
  
• You were misled about the implications of a waiver.
  
• Your spouse lied about the value of his assets.

Do not delay if you want to cancel your waiver; there is a three year time limit. It may seem long, but many things can come up during that time that might prevent you from getting your fair share.

My spouse and I are separated, and we do not agree on how the acquests should be divided. What can we do?

First, consult a lawyer or notary for advice, for help in determining which assets are private property and which are acquests, and for assistance with the many steps involved in partitioning property.

If you and your spouse still disagree, you may ask the court to order partition and appoint a notary. The notary will prepare a report indicating which assets should be partitioned and how to do it according to the law. A court-appointed notary has great latitude when executing his mandate; he can carry out investigations, request documents, make on-site visits, etc.

Once the report is drafted, you must apply to have it homologated (put into force) by the court. This application may be contested. The court may accept the report as is, or may modify, correct, or even reject it, if it is shown to contain irregularities or serious errors.