Matrimonial Regimes: Partnership of Acquests and Separation of Property
In Quebec, there are two types of matrimonial regimes: separation of property, established by a marriage contract, and partnership of acquests, which can be adopted with or without a marriage contract.
Understanding Matrimonial Regimes in Quebec
First, it is important to understand the distinction between the two, because even if it is possible to change regimes during marriage, this process requires the unofficial modification of the current matrimonial regime and the dissolution of the former regime by a notary. It is therefore essential to make an appropriate choice of matrimonial regime at the time of marriage, based on the specific needs and preferences of each couple.
The Partnership of Acquests Regime
The partnership of acquests is the default matrimonial regime applicable in Quebec, according to Article 432 of the Civil Code of Quebec (CCQ). Thus, it automatically applies to spouses who do not decide otherwise by notarized marriage contract.
According to Article 448 of the CCQ, two categories of property, namely private property and acquests, constitute the partnership of acquests. Indeed, according to this article, “[t]he property that each spouse possesses at the beginning of the regime or acquires thereafter constitutes acquests or private property […]”.
What is an Acquest?
Article 449 of the CCQ provides that acquests “include all property not declared private property by law.” Among these, one can find “the product of one’s work during the matrimonial regime” as well as “the fruits and revenues accrued or received during the regime, deriving from all one’s property, private or acquests.” For example, an investment accumulated during the marriage and derived from one’s income, as well as the interest generated, would constitute an acquest.
What is Private Property?
Private property notably includes property owned or possessed by a spouse at the beginning of the regime, as well as property received during the regime by donation or inheritance. Articles 450 et seq. of the CCQ also provide for other specific situations where property will be qualified as private.
If the matrimonial regime is dissolved, private property remains the exclusive property of its holder, while acquests are subject to division between the spouses. Each spouse has the right to renounce or accept the distribution in value of the acquests.
The Separation of Property Regime
This regime is governed by Articles 485 et seq. of the CCQ. To enter into this regime, it must be specifically provided for by a marriage contract.
Under this regime, each spouse has “the administration, enjoyment, and free disposal of all their property.” When neither spouse can prove exclusive ownership of a property, it is presumed to belong to both in undivided co-ownership, thus attributing half to each.
Unlike the partnership of acquests regime, the separation of property regime does not involve any division of property acquired during the marriage, with the exception of the value of family patrimony property, which is a matter of public order and applies to all married couples in case of separation (with exceptions). Thus, under this regime, each spouse retains ownership of their personal property not included in the family patrimony without any division taking place.
Which Regime to Choose?
In Quebec, the matrimonial regimes of partnership of acquests and separation of property offer distinct alternatives to couples. The partnership of acquests, the default regime, establishes clear rules for qualifying private property and acquests, with an equitable division in case of dissolution. In contrast, separation of property grants spouses full autonomy over their property, without division of property acquired during the marriage, except for the division of property contained within the family patrimony. Understanding these nuances is essential to enable couples to make informed choices based on their specific needs.
In summary:
- What is the default matrimonial regime in Quebec?
The default matrimonial regime in Quebec is the partnership of acquests.
- Can one change matrimonial regimes after marriage?
Yes, but it must be done by notarized deed.
- Does separation of property protect against a spouse’s debts?
Not necessarily, as this regime does not protect against debts incurred for family needs.
- How to prove that property is private in a partnership of acquests?
One must be able to demonstrate ownership before marriage or that the property comes from a donation or inheritance.
