When a couple gets divorced, the value of the family property (officially called the "family patrimony") is usually divided equally between the spouses. Who decides on this value, and how is divided?
Identify the Property Included in the Family Patrimony.
The law provides a list of property included in the family patrimony. If your property is not mentioned in this list, then it is not considered part of the family patrimony.
Evaluate the Market Value of the Property Included in the Family Patrimony.
The market value is the amount of money you would probably get from selling the family assets (or the amount you would receive from cashing in a pension plan) on the date the divorce is filed.
In some cases, market value is evaluated on the date the spouses stopped living together or on the date of the divorce judgement. If you want to use these dates, you must file an application in court.
How is market value determined?
The spouses can decide the market value themselves, or they can have experts do it. Here are a few examples:
- Home: city evaluation, opinion of certified appraiser or real estate broker
- Furniture: opinion of used furniture seller or professional appraiser
- Vehicles: opinion of mechanic, car dealer, specialized guidebooks
- Pension plan: plan manager's evaluation
- RRSPs: RRSP statements
- Pension benefits: "Simulated Partition" form provided by Retraite Québec (pension board) to estimate the value of the benefits after the family property is divided
Subtract the Debts.
Keep in mind that the net value of the property included in the family patrimony will be divided. To determine the net value, certain debts are subtracted from the property's market value. These debts are the ones used to
- maintain, or
- preserve the property.
The amount of the debts is determined on the same date used to evaluate the market value of the property.
For example, on the date you filed for divorce, your house was worth $100,000 and you owed $30,000 on your mortgage. The net value of your house is therefore $70,000:
$100,000 - $30,000 = $70,000.
Subtract Other Amounts.
You can subtract other amounts from the value of the family property. This is possible in the following four situations:
- Family property that belonged to you before you got married.
For example, your spouse moved into your house after you got married.
- Family property that belonged to you before you got married and was used to buy or improve other property included in the family patrimony.
For example, your spouse moved into your house after you got married. Then, you sold your house and used the money to buy a new one. Your family has been living in it ever since.
- You inherited property or received property as a gift. During your marriage, you used this property to buy or improve property included in the family patrimony.
For example, during your marriage, you used money you inherited from Aunt Matilda to buy your family home.
- You inherited property or received property as a gift. During your marriage, you used this property to buy or improve other property. Then, you used this other property to buy or improve property included in the family patrimony.
For example, during your marriage, you used your inheritance from Aunt Matilda to buy a rental property. Then, you sold the rental property and used the money from the sale to buy your family home.
What amounts can you subtract?
In the examples described above, you begin by subtracting the net value of your share (your share right before the marriage, or your share of the inheritance or gift). For example, if you lived in only one house during your entire marriage, and your share of the house is $100,000, you will be allowed to subtract this amount. To be fair, the law also allows you to subtract the increase in the value of your share, in proportion to the house's increase in value on the day of the divorce (or the decrease in value of your share if the house lost value). For more information on how to calculate the increase in value in proportion to the value of the property at the time of the divorce, refer to the second example provided for calculating the division of the family patrimony.
Determine the Value to Divide Between the Spouses.
To figure out the value to divide for each piece of property, begin by determining its market value. Then, subtract any other amounts allowed according to the rules described above. The spouse who owns the property therefore owes half of the amount to the other spouse.
The spouses share equally in the value of the property included in the family patrimony instead of sharing the property itself.
The spouse with the higher property value must pay the other spouse
- in money, or
- in property.
The spouses can agree to divide up their property in a different way. However, a judge will have to approve their agreement. To find out more, consult a lawyer or notary.
Rules and calculations concerning the family patrimony are very complicated and can be interpreted in different ways. Examples of calculations to help you understand the basic rules for dividing your family patrimony are available on our website. We have simplified the examples to make them clearer. Don't hesitate to consult a lawyer or notary to learn about your rights and have a better understanding of your own situation.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.