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DUFOURD, DION Lawyers |
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THE LEGAL
MATRIMONIAL REGIME OF PARTNERSHIP OF ACQUESTS IN THE PROVINCE OF QUEBEC The property that the
spouses possess individually when the regime comes into effect or that they
subsequently acquire constitutes acquests or private property according to the
rules that follow. The acquests of each
spouse include all property not declared to be private property by law, and, in
particular, (1) the
proceeds of that spouse's work during the regime; (2) the
fruits and income due or collected from all that spouse's private property or
acquests during the regime. The private property
of each spouse consists of (1) property
owned or possessed by that spouse when the regime comes into effect; (2) property
which devolves to that spouse during the regime by succession or gift, and the
fruits and income derived from it if the testator or donor has so provided; (3) property
acquired by that spouse to replace private property and any insurance indemnity
relating thereto; (4) the
rights or benefits devolved to that spouse as a subrogated holder or as a
specified beneficiary under a contract or plan of retirement, other annuity or
insurance of persons; (5) that
spouse's clothing and personal papers, wedding ring, decorations and diplomas; (6) the
instruments required for that spouse's occupation, saving compensation where
applicable. Property acquired
with private property and acquests is also private property, subject to
compensation, if the value of the private property used is greater than one-half
of the total cost of acquisition of the property. Otherwise, it is an acquest
subject to compensation. The same rule applies
to life insurance, retirement pensions and other annuities. The total cost is
the aggregate of the premiums or sums paid, except in term insurance where it is
the amount of the latest premium. Where, during the
regime, a spouse who is already privately an undivided co-owner of a property
acquires another part of it, this acquired part is also that spouse's private
property, saving compensation where applicable. However, if the value
of the acquests used to acquire that part is equal to or greater than one-half
of the total value of the property of which the spouse has become the owner,
this property becomes an acquest, subject to compensation. The right of a spouse
to support, to a disability allowance or to any other benefit of the same nature
remains the private property of that spouse; however, all pecuniary benefits
derived from these are acquests, if they fall due or are collected during the
regime or are payable to that spouse's heirs and successors at death. No compensation is
due by reason of any amount or premium paid with the acquests or the private
property to acquire the support, allowance or other benefits. The right to claim
damages and the compensation received for moral or corporal injury are also the
private property of the spouse. The same rule applies
to the right and the compensation arising from an insurance contract or any
other indemnification scheme, but no compensation is payable in respect of the
premiums or amounts paid with the acquests. Property acquired as
an accessory of or an annex to private property, and any construction, work or
plantation on or in an immovable which is private property, remain private,
saving compensation, if need be. However, if the
accessory or annex was acquired, or the construction, work or plantation made,
from acquests, and if its value is equal to or greater than that of the private
property, the whole becomes an acquest subject to compensation. Securities acquired
by the effect of a declaration of dividends on securities that are the private
property of either spouse remain that spouse's private property, saving
compensation. Securities acquired
by the effect of the exercise of a subscription right, a pre-emptive right or
any other similar right conferred on either spouse by securities that are that
spouse's private property likewise remain so, saving compensation, if need be. Redemption premiums
and prepaid premiums on securities that are the private property of either
spouse remain that spouse's private property without compensation. Income derived from
the operation of an enterprise that is the private property of either spouse
remains that spouse's private property, subject to compensation, if it is
reinvested in the enterprise. No compensation is
due, however, if the investment was necessary in order to maintain the income of
the enterprise. Intellectual and
industrial property rights are private property, but all fruits and income
arising from them and collected or fallen due during the regime are acquests. All property is
presumed to constitute an acquest, both between the spouses and with respect to
third persons, unless it is established that it is private property. Any property that a
spouse is unable to prove to be an exclusively private property or acquest is
presumed to be held by both spouses in undivided co-ownership, one-half by each. Each spouse has the
administration, enjoyment and free disposal of his or her private property and
acquests. Neither spouse may,
however, without the consent of the other, dispose of acquests inter vivos by
gratuitous title, with the exception of property of small value or customary
presents. A spouse may be
authorized by the court to enter into the act alone, however, if consent cannot
be obtained for any reason or if refusal is not justified in the interest of the
family. The restriction to
the right to dispose of acquests does not limit the right of either spouse to
designate a third person as a beneficiary or subrogated holder of an insurance
of persons, a retirement pension or any other annuity, subject to the
application of the rules respecting the family patrimony. No compensation is
due by reason of the sums or premiums paid with the acquests if the designation
is in favour of the other spouse or of the children of either spouse. The spouses,
individually, are liable on both their private property and their acquests for
all debts incurred by them before or during the marriage. While the regime
lasts, neither spouse is liable for the debts incurred by the other, subject to
articles 397 and 398 of the Civil Code of Quebec. The regime of
partnership of acquests is dissolved by (1) the
death of one of the spouses; (2) a
conventional change of regime during the marriage; (3) a
judgment of divorce, separation from bed and board, or separation as to
property; (4) the
absence of one of the spouses in the cases provided for by law; (5) the
nullity of the marriage if, nevertheless, the marriage produces effects. The effects of the
dissolution are produced immediately, except in the cases of
subparagraphs 3 and 5, where they are retroactive, between the
spouses, to the day of the application. In any case of
dissolution of a regime, the court may, upon the application of either spouse or
of the latter's successors, decide that, in the mutual relations of the spouses,
the effects of the dissolution are retroactive to the date when they ceased to
live together. Each spouse retains
his or her private property after the regime is dissolved. One spouse may accept
or renounce the partition of the other spouse's acquests, notwithstanding any
agreement to the contrary. Acceptance may be
either express or tacit. No spouse who has
interfered in the management of the acquests of the other spouse after the
regime is dissolved may receive the share of the acquests of the other spouse to
which he or she is entitled unless the other spouse has accepted the partition
of the acquests of the spouse who interfered. Acts of simple
administration do not constitute interference. Renunciation shall be
made by notarial act en minute or by a judicial declaration which is
recorded. Renunciation shall be
entered in the register of personal and movable real rights; failing entry
within one year from the date of the dissolution, the spouse is deemed to have
accepted. If either spouse
renounces partition, the share of the other's acquests to which he or she would
have been entitled remains vested in the other. However, the
creditors of the spouse who renounces partition to the prejudice of their rights
may apply to the court for a declaration that the renunciation may not be set up
against them, and accept the share of the acquests of their debtor's spouse in
his or her place and stead. In that case, their
acceptance has effect only in their favour and only to the extent of the amount
of their claims; it is not valid in favour of the renouncing spouse. A spouse who has
misappropriated or concealed acquests, wasted acquests or administered them in
bad faith forfeits his or her share of the acquests of the other spouse. Acceptance and
renunciation are irrevocable. Renunciation may be annulled, however, by reason
of lesion or any other cause of nullity of contracts. When the regime is
dissolved by death and the surviving spouse has accepted the partition of the
acquests of the deceased spouse, the heirs of the deceased spouse may accept or
renounce the partition of the surviving spouse's acquests, and, excepting
preferential awards which only the surviving spouse is entitled to receive, the
provisions on the dissolution and liquidation of the regime apply to them. If one of the heirs
accepts partition and the others renounce it, the heir who accepts may not take
more than the portion of the acquests that he would have had if all had
accepted. Renunciation by the
surviving spouse may be set up against the creditors of the deceased spouse. When a spouse dies
while still entitled to renounce partition, the heirs have a further period of
one year from the date of death in which to have their renunciation entered. When the partition of
a spouse's acquests is accepted, the property of the patrimony of that spouse is
first divided into two masses, one comprising the private property and the other
the acquests. A statement is then
prepared of the compensation owed by the mass of private property to the mass of
the spouse's acquests, and vice versa. The compensation is
equal to the enrichment enjoyed by one mass to the detriment of the other. Property susceptible
of compensation is estimated according to its condition at the time of
dissolution of the regime and to its value at the time of liquidation. The enrichment is
valued as on the day the regime is dissolved; however, when the property
acquired or improved was alienated during the regime, the enrichment is valued
as on the day of the alienation. No compensation is
due by reason of expenses necessary or useful for the maintenance or
preservation of the property. Unpaid debts incurred
for the benefit of the private property give rise to compensation as if they had
already been paid with the acquests. Payment with the
acquests of any fine imposed by law gives rise to compensation. If the statement
shows a balance in favour of the mass of acquests, the spouse who holds the
patrimony makes a return to that mass for partition, either by taking less, or
in value, or with his or her private property. If the statement
shows a balance in favour of the mass of private property, the spouse removes
assets from his or her acquests up to the amount owed. Once the settlement
of compensation has been effected, the net value of the mass of acquests is
established and evenly divided between the spouses. The spouse who holds the
patrimony may pay the portion due to the other spouse by paying him or her in
money or by giving in payment. If the dissolution of
the regime results from the death or absence of the spouse who holds the
patrimony, the other spouse may require to be given in payment, on condition of
payment of any balance, in cash or by instalments, the family residence and the
movable property serving for the use of the household or any other family
property to the extent that they were acquests or property forming part of the
family patrimony. If there is no
agreement on the payment of the balance, the court fixes the terms and
conditions of guarantee and payment. If the parties do not
agree on the valuation of the property, it is valued by experts designated by
the parties or, failing them, the court. Dissolution of the
regime does not prejudice the rights, before the partition, of former creditors
against the whole of their debtor's patrimony. After the partition,
former creditors may only pursue payment of their claims against the debtor
spouse. However, if the claims were not taken into account when the partition
was made, they may, after discussion of the property of their debtor, pursue the
other spouse. Each spouse then preserves a remedy against the other for the
amounts he or she would have been entitled to if the claims had been paid before
the partition. In no case may the
spouse of the debtor spouse be called upon to pay a greater amount than the
portion of the acquests he or she received from the latter. This text is not a legal opinion. No decision should be taken before you consult with a lawyer.
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