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Law Column

June 2009 Law Column

FAMILY LAW

Common-law spouses and family patrimony : important developments!

PFD Family Law dept.

 

First, certain points must be raised regarding the legal obligations and duties of partners in common-law relationships. Because they are not married, these partners are not obligated to adhere to a matrimonial regime and do not have to establish a family patrimony as per the provisions of the Civil Code of Quebec. Accordingly, each party owns his own property, is responsible for their own debts and can dispose of their own savings as they wish. However, common-law spouses can draft a document to specify various agreements regarding their union and the consequences of a breakdown of the union. There are therefore many possibilities open to future spouses: they can specify in a contract that they will be bound by the rules of family patrimony, that there will be an obligation to pay alimony to an ex-spouse, they may grant rights to use the principal residence, etc.

 

On February 26, 2009, The Superior Court of Quebec rendered a decision regarding this issue, specifically with respect to the application of the rules of family patrimony following the breakdown of a couple’s common-law relationship. In this matter, the plaintiff and the respondent, age 48 and 44 respectively, had lived together from 1986 to October 2003. In 1993, the parties had signed a notarized agreement to settle certain patrimonial aspects of their civil union. This agreement stipulated that the parties reserved the right to modify the contract by mutual agreement. This right was important because another clause provided that all assets designated as such were part of the family patrimony, and, as per the Civil Code of Quebec, should be shared according to the rules of that Code, with the necessary adaptations.

 

In the case of married people, the legislative provisions of the Civil Code of Quebec regarding family patrimony do not allow the spouses to renounce their rights to family patrimony in a marriage contract or by any other means. They can only do so once a judgment pronouncing their divorce or separation has been rendered or by means of a judicial declaration.

 

The Court therefore was called upon to answer the following question: “If common-law spouses have contractually agreed to this regime can they exclude some of its rules, such as renounce to the division of the family patrimony before there is a judgment of divorce or separation, if they have clearly expressed the will to do so?”

 

The Court’s response was affirmative, as it noted that in cases of common-law relationships, a judgment of divorce or separation could never be granted, and that this rationale applies even in the absence of a clause allowing the agreement to be modified. The Court found that common law unions are life-style choices and as such, the rules of marriage do not apply unless accepted.

 

In common law relationships, the provisions regarding family patrimony lose their qualification as public order rules. Courts of law cannot decide otherwise because if they did, they would place marriage and common-law unions on the same footing, which Quebec legislators have not yet decided to do. This decision addresses certain questions raised by the celebrated LOLA case, which will be the subject of an article in our Colonne juridique once it is published.