by Daniel Romano, BCL, LL.B., MA & Margherita M. Morsella, LL.B., BA
Every once in a while we receive a charming telephone call from someone who is mature in age, already accomplished in life, and thinking of getting married. Having already accumulated a fair amount of assets, they ask us about drafting a ‘pre-nup.’ In the province of Quebec we do not use the terminology “Pre-Nuptial Agreements.” We call them “marriage contracts” and they must be properly notarized to be valid.
If you get married without having a marriage contract, like the vast majority of people do in Quebec, then your marital regime will automatically be that of “Partnership of Acquests.” This means that the value of the property accumulated during the marriage gets partitioned upon the dissolution of the marriage, and it could lead to some complications as the parties may disagree as to which particular assets are private and which are part of the Partnership.
This sort of question can be especially touchy in those unfortunate cases where a marriage is dissolved as a result of the death of one of the parties, and the surviving children are then contesting ownership of certain assets with the surviving spouse.
A senior person looking forward to remarriage may want to consider a marriage contract known as “Separation as to Property”. In such a case, one could list the property owned by each of the parties prior to marriage so that in the event of a breakup or death, any claim toward that property could be easily resolved. This would help to ensure that all of the assets owned by that person prior to marriage and those acquired during marriage in the sole name of that person would be sheltered from partition when the marriage ends. Furthermore, the person who is the sole owner of a specific property would be able to sell, lease, mortgage or give away that property without the other spouse’s consent.
There are of course numerous exceptions to this separation of property. Some assets will be partitioned regardless of the chosen regime. These would include those assets acquired by the married couple together, after the wedding, with no distinction made as to whose specific property the asset is. So, if you purchase a motorboat together and register it under both of your names, then its value will be partitioned upon the dissolution of the marriage.
An important exception are assets that make up the “Family Patrimony.” In Quebec, the Family Patrimony laws set aside a specific list of assets that will be partitioned if they were acquired during the marriage regardless of which matrimonial regime you have contracted. These assets include family residence and secondary residence, the furniture in those residences, the family car, RRSPs, private pension plans, and Quebec pension plan. These assets will not be partitioned if they were already owned by one spouse prior to the wedding or if they were acquired by inheritance or as a gift specific to one of the spouses.
Things get a bit complicated if the Family Patrimony asset, such as a home, was only partially owned before the wedding day, and a portion of the mortgage gets paid off during the marriage. In such a case we have to calculate ratios of accumulated equity, and you can be certain that law students spend many sleepless nights trying to master those rules and calculations.
The important thing is that although not all marriages end in divorce, they do all eventually end. Such is the nature of life. Whatever the cause for the dissolution of the marriage, a division of assets will have to occur eventually. How that dissolution is done can be planned long in advance and can help reduce dissapointment or unfortunate surprises in the future. Marriage can be a wonderful thing and “Love-later-in-life” a very special gift. Those considering such an adventure should not be daunted by the complexities, but rather take the necessary steps to plan out how they want things resolved and how much control they wish to have over their own destinies.
Margherita M. Morsella & Daniel Romano are attorneys with KALMAN SAMUELS, a family law firm. We invite you to follow us next issue when we address Amicable Divorce – How do we proceed?
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