When a divorce occurs, the rule is clear: family patrimony is divided equally between spouses, as the Act presumes that they contribute equally to the burdens of marriage[1].
However, unequal division of family patrimony is possible, as provided for in Article 422 of the Civil Code of Quebec[2]:
422. The court may, upon request, derogate from the principle of equal division and, with respect to gains recorded under the Act respecting the Québec Pension Plan (chapter R-9) or equivalent programs, decide that there shall be no division of such gains, where an injustice would result, taking into account, in particular, the brief duration of the marriage, the dissipation of certain property by one of the spouses, or the bad faith of one of them.
Unequal division remains an exception, however[3].
Injustice
But what justifies such an exception? According to jurisprudence, unequal division of family patrimony is justified when an injustice would result from an equal division[4].
Injustice may result, notably but not exclusively, from a brief duration of the marriage, the bad faith of one of the spouses, or the dissipation of property during the union[5].
Brief Duration of Marriage
A clear economic injustice can indeed result from an equal division when the marriage is of short duration. This would be the case in the following situations:
(i) Contributions to the patrimony are made by the wife solely with her personal money and donations from her parents[6]. It would thus be unusual for the husband to benefit from half of his wife’s contributions when their marriage was of short duration and he did not contribute at all;
(ii) The husband is the sole contributor to the purchase of the family residence and various expenses, while his wife regularly and extensively travels abroad[7]. Considering that only the husband contributed and that for a large part of their union, the wife was away, it would also be unusual for her to benefit from half of the contributions to the patrimony.
Bad Faith and Dissipation of Property
The bad faith of one of the spouses may also, from time to time, justify an unequal division of family patrimony[8]. However, it must have a clear link with the family patrimony. We are therefore talking about economic bad faith[9].
It would thus not be possible to request an unequal division for reprehensible or repugnant behaviors[10], whether it be domestic violence or adultery.
Here are some examples of situations considered to be economic bad faith:
(i) Obstructing the sale of the family residence[11];
(ii) Falsely accusing the other spouse of having assaulted and sexually abused the couple’s children, thereby causing them to incur expensive legal fees to defend themselves[12];
(iii) Concealing assets from the other spouse[13].
The dissipation of property is also another cause justifying the unequal division of family patrimony[14]. This would be the case if one of the spouses dissipated property forming part of the patrimony in order to excessively gamble on lottery games and races.
References
[1] M.T. c. J.-Y.T., 2008 CSC 50; Droit de la famille — 18409, 2018 QCCS 796; Carrillo Garcia c. Leroux, 2017 QCCS 4021.
[2] Civil Code of Quebec, RLRQ, c. CCQ-1990, art. 422.
[3] Droit de la famille — 1719, 2017 QCCS 30; Droit de la famille — 162923, 2016 QCCS 5897; Droit de la famille — 153172, 2015 QCCS 5873.
[4] J.-C. G. c. D.B., SOQUIJ AZ-50376672 (QC CS); Droit de la famille — 2071, [1994] R.J.Q. 2933 (C.S.).
[5] Supra, note 2; M.T. c. J.-Y.T., supra, note 2.
[6] Droit de la famille — 15162, 2015 QCCS 385.
[7] Droit de la famille — 151855, 2015 QCCA 1244.
[8] Supra, note 2.
[9] Droit de la famille — 153172, 2015 QCCS 5873.
[10] A.-M.M. c. F.I., [2001] R.D.F. 833 (QC CS); L.B. c. R.Bi., SOQUIJ AZ-50116426 (QC CS).
[11] Droit de la famille — 3180, [1999] R.D.F. 655 (QC CS).
[12] Droit de la famille — 101776, 2010 QCCS 3431.
[13] Droit de la famille — 072133, 2007 QCCS 4141.
[14] Supra, note 2.
