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Married and Civil Union Spouses - The Consequences of a Breakup

Divorce: Property and Bills at the Time of the Breakup

Amina is divorcing Mahmoud. She wants him to leave the house but he refuses.

Amina, who has always taken care of the children, does not know what to do. She does not work and the house is in Mahmoud’s name. She has access to a joint bank account but does not know if she has the right to use it to pay for her needs and the children’s needs.

In this Infosheet, Éducaloi explains the rights of spouses during a breakup regarding the family home (house, condo or rented dwelling) and other property.

Do I have the right to remain in our home even if I am not the owner/tenant?

Yes. At the time of a breakup, you have the right to stay in your home even if you are not the owner or the tenant. As a general rule, your spouse cannot force you to leave.

If one of you chooses to leave the home, he can come back unless:

• he agreed to give exclusive use of the home to the other spouse
  
  
• police officers have asked him to leave the home and he agreed not to return
  
  
• he has undertaken not to disturb the peace and his undertaking prohibits him from being near the home

We both want to continue to live in the home. How does one spouse force the other to leave?

You can ask a judge to make an urgent judgment   (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/449/)giving you “exclusive use of the family residence”. In other words, the judge can give you permission to remain in the home and temporarily remove this same right from your spouse. This is possible even if you are not the owner or the tenant. Once the judgment is made, the excluded spouse will no longer have any right to live or enter the home without the other spouse’s permission.

It is possible to get this judgment within a matter of days or weeks. To decide who will stay and who will have to leave the home, the judge will take into account:

• the inconvenience to each of you and your children if you have to leave the house
  
  
• the interests of your children
  
  
• whether you can find another place to live

Be careful! The issue of who can stay in the home is closely connected to child custody. In fact, the spouse who has the children is much more likely to get the right to stay in the home since it is not usually in the best interests of the children, whose lives have already been disrupted by the breakup, to have to move.

When I got home, I found out that my wife had changed the locks on the door. Does she have the right to do that?

Normally, only the judge has the right to exclude you from your home. So what can you do?

You can ask the judge for permission to live in the home and to exclude your spouse from it. This is what is officially called a “Safeguard Order for Exclusive Use of the Family Residence  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/449/)”. In your request to the court, you can tell the judge about your spouse’s actions.

You must act quickly if you want to make this kind of request. As a general rule, the more time you let pass, the less likely it is that a judge will allow you to return to live in the home.

Be careful! A spouse may have a valid reason to change the locks on the door. In case of doubt, consult a legal professional to find about your rights.

Co-owners

If you are co-owners of your home, you can ask for financial compensation for having been excluded from the home by your wife. This is particularly true if you continued to pay your share of household expenses (e.g., mortgage, electricity) and you have your own expenses to pay since you are living somewhere else.

We live in a house. Who should pay the household expenses after the breakup?

That depends on each spouse’s ability to pay, needs, and particular situation. Each person needs to show good faith and common sense until there is an agreement between you or a judgment is made.

Generally, if you both continue to live in the house, you can agree to pay the expenses in the same way you did before the breakup, and at the same time try to negotiate an agreement. If you are not able to reach an agreement, you can apply to a judge who will make an urgent and temporary decision  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/449/).

For example, during the marriage, Mahmoud pays the mortgage and Amina pays the groceries and makes the car payments. Each spouse wants to remain at the house following the breakup. They will have to wait a few days or weeks until a judge decides which one of them will have the right to remain in the home, and under what conditions. Mahmoud and Amina can agree in the meantime to share the expenses as they did in the past.

It is not always so simple. Sometimes, one of the spouses decides to stop making payments for various reasons, valid or not.

If this is your situation, here are a few helpful hints:

1) Only one of the spouses owns the house

• In general, the spouse who owns the house would want to make sure that the taxes, the mortgage and the house insurance are paid. Indeed, if the payments are not made, the bank or the city may be able to obtain a judgment against the spouse and possibly seize and sell the house.
  
  
• The spouse who is not owner of the house but who lives in the house should normally contribute to the payments according to his means.
  
  
• It is possible that one of you does not have the means to pay. The spouse in need may ask the judge to order the other spouse to pay or to temporarily help the spouse in need with the payments of the household expenses.
  
  For example, Mahmoud is owner of the house. He is living elsewhere. Even if he has the means to pay the household expenses of his wife, Amina, he refuses to do so. Amina does not have the means to pay these expenses. She can ask the judge to make an urgent judgment ordering Mahmoud to continue to pay the household expenses.
  
  
• Finally, the spouse who undertook to pay a specific sum of money will find it in his interest to make sure that it is paid. For example, the house belongs only to Mahmoud, but Amina signed with the bank that she would also be responsible to make mortgage payments. If Mahmoud does not pay the mortgage, the bank can decide to sue Amina.

2) You are joint owners of the house

You must, in theory, share the household expenses (mortgage, taxes, house insurance). If your spouse refuses or neglects to pay his share, you can pay instead of him and sue him for the reimbursement of the amount you paid for him.

Do not forget to keep the proof of your payments (e.g.: invoices, bank statements, receipts, photocopies of cheques).

If one of you no longer lives at the house, that spouse can, amongst other things:

• Continue to pay his share of the expenses and claim financial compensation from the other spouse for having been deprived of the use of his property (house).
  
  
• Make an agreement with the other spouse that she continue making all the payments alone and, in exchange, agree not to sue her for compensation.

It is possible that one of you does not have the means to pay. The spouse in need may ask a judge to order the other spouse to pay or to temporarily help her with the payment of the household expenses

3) You are the owner or co-owner of the house but you are no longer able to continue paying for all the household expenses following the break-up.

• You may need to consider selling the house. If your spouse refuses, you can ask a judge to order that the house be sold and to determine the conditions of the sale.

Finally, it can be very useful to make your bank or other financial institution aware of your personal situation.

My wife left our home and she refuses to pay for anything. I receive the bills but am unable to make all the payments. What are my options?

You can make an urgent request   (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/449/)to a judge to order your spouse to pay you support. “Support” is a financial contribution by one spouse with the financial means to the other spouse in need and/or for the benefit of the children. The judge can also order your spouse to pay certain expenses such as the rent, the mortgage or electricity directly.

For more on support, consult our Infosheets, The Quebec Model for Determining Child Support  (http://www.educaloi.qc.ca/en/loi/parents/149/) and Spousal Support  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/145/).

While waiting for the judge’s decision, you can inform the people or institutions to whom you owe money about your situation and try to make arrangements directly with them. If you have good credit, you may try to temporarily use it carefully while keeping all the receipts and proof of transactions. In essence, you may use all the resources at your disposal while establishing your priorities: for example, the payment of the rent will come before the payment of a credit card balance.

I did not sign the lease. My husband left the dwelling and refuses to pay the rent. What can I do?

In general, the spouse who signed the lease must pay the rent. If he does not pay it, the landlord can apply to the Régie du Logement to end the lease and get financial compensation for any damages incurred.

In other words, if your spouse, who signed the lease, no longer pays the rent, you are likely to be evicted. To avoid this situation, you can pay the rent and make an urgent request   (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/449/)to a judge so that he gives you exclusive use of the dwelling. If you are financially unable to pay the rent alone, you may ask a judge to order your spouse to continue paying the rent temporarily.

Over and above this urgent request, you may also replace your spouse as tenant. To exercise this right, you must send a written notice to the landlord within two (2) months of the breakup, informing him of who you are and of your wish to continue living in the dwelling. You can use the form provided by the Régie du Logement  (http://www.rdl.gouv.qc.ca/en/pdf/803a9312.pdf). Once you become the tenant, you then have the obligation to pay the rent.

I had to pay certain expenses which normally should have been paid by my wife. Will I be reimbursed?

It may be that you had to make a payment on behalf of your spouse to avoid losing an important good or to avoid bad credit.

Regardless of the reason, you may ask for reimbursement. You will generally be reimbursed, however, nothing is guaranteed. Do not forget to keep proof of payment (e.g.: invoices, bank statements, receipts, photocopies of cheques).
The issue of reimbursement of expenses is not considered an urgent one. You will have to wait for the final judgment on the divorce to know whether or not the judge accepts your claim to get reimbursed. However, you may plan ahead and ask a judge to make an urgent decision that will determine temporarily which spouse will pay what expenses.

You may also try to agree with your spouse before having to pay expenses in her place.

My husband took our sofa, one of our television sets, and some of our electric household appliances, without my approval. Is this legal?

No. Your husband must get you to agree before leaving the house with “furniture” used by the family. “Furniture” includes what we usually mean by “furniture” (sofas, beds, tables, dresser, etc.), as well as major electrical appliances (refrigerator, washer, stove, etc.), small electrical appliances (coffee machine, toaster, microwave oven, etc.), electronic devices (television set, sound system, etc.) and art work (portraits, paintings, sculptures, etc).

Even if a spouse owns these items, he does not have the right to leave the house without the other spouse’s approval or the judge’s permission.

Ideally, the spouses should come to an agreement at the breakup. If this is impossible, each spouse can ask the judge to allow him to use the family “furniture“, and to exclude the other spouse from using it.

However, a spouse may remove from the house property that belongs to him and which is not considered “furniture” used by the family. Your spouse may, at his discretion, take his clothing, jewellery, stamp collection, work tools, and furniture from his home office.

For example, Mahmoud is an accountant and has his office in the basement of the house. He does not need to get Amina’s agreement to walk out with his computer that was only used by him for work. He can also take the sofa he bought to receive his clients and the rest of his office furniture (desk, filing cabinet, etc).

What can I do if my husband tries to sell our things (“furniture”)?

You can do what is officially called a “seizure before judgment” to prevent your husband from selling:

• the movable property which belongs to you personally;
  
  
• your share of the movable property which belongs to him;

Some conditions apply. For more information, consult a legal professional.

I had to leave the house. How can I recover some of the personal effects that I left behind?

Ideally you would make arrangements with your spouse (either alone or with the help of your lawyer) as to a time and date to retrieve your personal belongings. In particularly difficult cases, it is wise to bring someone along with you to witness your behaviour and your spouse’s behaviour, and if need be, testify about what happened to the judge.

For example, Mahmoud left the house he occupied with Amina. His relationship with Amina is extremely tense. According to Mahmoud, Amina wrongly accused him of certain things and she sees herself as a victim. Amina reluctantly agrees to allow Mahmoud to go by the house at 4:00 p.m. on Saturday to pick up his belongings. In addition to his personal effects, Amina also agrees that Mahmoud take the stove and one of the beds. Since Mahmoud is worried that Amina will accuse him of taking other possessions than those agreed to or that Amina will make a scene when he is there, he asks his friend Charles to accompany him, and to act as a witness, if need be.

If the situation between you and your spouse requires it, you may ask for a police escort when entering the house.

Finally, you can make an urgent request  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/449/) to a judge to order your spouse to give you access to the house at a precise date and time in order to enable you to get your personal effects. The judge may also order your spouse to return your personal effects within a specific time frame.

My husband emptied our joint bank account. He also uses our joint credit card whenever he wants. What can I do?

In general, the money which is in a joint bank account must be equally shared between you. If your spouse uses your share of the money, you can request that a judge order your spouse to reimburse you.

With respect to your joint credit card, you can warn him not to use the credit card and you can call your bank to have it cancelled. As well, you can request that a judge order your spouse to pay the amount that he already spent on the card.

It all depends on the circumstances. A spouse who uses the credit card to pay for the family debts will be considered differently from a spouse who uses the credit card to purchase a new wardrobe.

I want to come to an agreement with my husband on the best way to divide our things. Is there anything I should know beforehand?

Yes. It is very important to be informed of your rights and obligations before coming to an agreement with your spouse. A simple consultation with a legal professional will ensure that you understand what is at stake and will help you avoid possible future disappointment.

Also, it is important to know that:

• The law stipulates that the value of certain property must be equally shared between spouses.
  
  
• There may be fiscal (tax) consequences when you transfer certain types of property between spouses.
  
  
• Some property may not be immediately available to you regardless of the fact that you have become the new owner (e.g. income registered at the Régime des rentes du Québec).
  
  
• Even if you decide that one spouse will keep a specific item, it will not eliminate the debt that the other spouse incurred for that item. For example, Mahmoud agrees that Amina keeps the sofa. Mahmoud still owes money to Co XYZ, which financed the purchase of the sofa. Mahmoud will have to continue making payments to Co XYZ. If not, he may be sued by Co XYZ. Amina will also have problems if Co XYZ decides to include her in its suit. To avoid all this, Mahmoud and Amina should negotiate an agreement with Co XYZ so that Amina is henceforth responsible for the debt, instead of Mahmoud.

Here is a brief overview of what the law provides with respect to the division of family property:

The law stipulates that the spouses share equally the value of the following property, regardless of who is the owner:

• your house
  
• your secondary home (example: country cottage)
  
• your furniture (example: refrigerator, vacuum cleaner, sofas, beds, towels, kitchenware)
  
• your cars
  
• sums accumulated during your marriage in your retirement plans (example: RRSPs);
  
• sums accumulated during the marriage in your public or private pension plans (Régie des Rentes du Québec or equivalent program).

For more information, consult our Infosheet Family Patrimony  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/147/).

If you do not have a marriage contract, you also have the right to ask for the equal division of the value of other property (example: bank accounts, company shares), according to very specific rules.

For more information, consult our Infosheet Partnership of Acquests  (http://www.educaloi.qc.ca/en/loi/ married_and_civil_union_spouses/148/).

I am going through a very difficult breakup. I have all kinds of problems in regards to our property. Can somebody help me?

Several organizations offer services to people who have personal or family problems. To obtain information on the organization closest to where you live or on the services best adapted to your needs, you can ask at any Health and Social Service Centre  (http://www.sante.qc.ca/listes/ta-clsc.htm).

If you are a victim of domestic violence, know that, in all regions of Quebec, there are shelters for abused women or women in difficulty. Similar establishments also exist for men, but they are fewer.

These centers can provide lodging for a few days, or for a longer period that can be up to several months long. Some can accommodate a parent with children. In addition to offering a roof, a bed and food, these establishments can suggest various psychological interventions, offer a referral service, or even provide the necessary support to get you back on your feet again after a breakup.

For more information, see the website of l’Institut national de santé publique  (http://www.inspq.qc.ca/violenceconjugale/ressources.asp?id=8) (French only).

Finally, the associations who are members of the Fédération des associations de familles monoparentales et recomposées du Québec  (http://www.fafmrq.org/federation/associations-regions.html) offer several services to help people going through a breakup.