Legally Speaking: What happens to the family home during a divorce?

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by Geoffrey Ngamilu LL.B., DESS, LL.M.

One of the most important questions that comes up in a divorce is “what happens to the family home?”

What was once called “home sweet home” could become the subject of a major battle. In the midst of the normal emotional turmoil and worries, it is important to be aware that the family home is part of what is designated under Quebec law as the family patrimony.

This concept was introduced in the Quebec legal system in 1989 and changed the way that we perceive the home belonging to married couples. The family patrimony is created by marriage or by civil unions and applies to spouses domiciled in the province of Quebec regardless of where they got married.

The intention behind the family patrimony law was to promote economic equality between spouses by ensuring that certain assets used by the spouses during their family life are divided fairly upon their divorce. These assets include, among other things, the family car, RRSPs, the family residence and the furniture within.

The provisions of the family patrimony law are of public order, which means that a couple cannot renounce them, even through a marriage contract or prenuptial agreement. There may be some exceptions in cases of a very short marriage or when one of the spouses has dissipated the family assets.

In those cases, the court can order an unequal partition of the family residence. The value of the family home is established according to specific rules set out in the Civil Code of Quebec. It does not matter whose name the house is under. If it was the family home, then it forms part of the family patrimony. The Code provides a formula to calculate the value of the family patrimony, including the family home.

This formula factors whether the home was already owned by one of the parties before the marriage, the progress of the mortgage and equity over the course of the marriage, improvements on the home, investments made from gifts or inheritance monies by one party or the other, and other factors.

These calculations can be complicated and are often included in the Bar Exam for prospective lawyers! Once this calculation is made, each party can decide if they would like to sell their portion of the house, or purchase their soon to be ex-spouse’s portion.

Sometimes during the divorce proceeding itself tensions are high and it would be best if the couple lived apart. In such a case, one can agree to leave the home. If neither party is willing to depart, then the Court will make an interim decision as to who leaves the home and who remains until the proceedings are resolved.

When one spouse occupies the family home to the exclusion of the other spouse, both spouses remain legally responsible for joint debts such as joint mortgage, line of credit or other secured financing. Other expenses related to the house are also the responsibility of the joint owners and must be assumed together.

However, a court could exceptionally order a different division of financial responsibilities if one of the spouses is financially more vulnerable or if the spouses have already agreed otherwise. It is important to keep in mind that the division or the disposal of the former home will depend on the particular circumstances of each case.

There is no easy solution and every decision should be carefully weighed.

Geoffrey Ngamilu is an attorney with KALMAN SAMUELS, a family law firm. We invite you to follow us in the next issue when we address the challenge of Undue Hardship.

*** Dear Reader, These articles are published to provide you with general information about interesting legal topics and not as a legal opinion. Please do not hold the author, KALMAN SAMUELS, Attorneys, or The Senior Times liable for any consequences arising from any attempts to rely on this material. If you need a legal opinion for a specific matter, we recommend that you consult a qualified attorney.

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