Dear Readers:

So where did we leave off the last time? Ah yes, more rights exist for unmarried couples in Quebec than married couples here and in most provinces!

Firstly, I trust you all practised the exercise I gave you in my last column repeating “There is no such thing as a Common Law relation in Quebec!”, meaning no legal rights or obligations are attached to this cohabitation unless you signed a contract by which you gave yourself some, or unless you are registered co-owners of property accumulated during your time together.

That said; let’s answer how unmarried couples can have more rights in Quebec than married couples. The answer: by drafting a Detailed Cohabitation Contract prior to living together (although you can sign one during your cohabitation but before is better since, afterwards, one party may no longer be amenable or it’s already too late as you’re in separation mode).

Why can you have more rights, and conversely more obligations? Because in Quebec, married couples, since 1989, cannot contract about or out of any terms or conditions pertaining to the Family Patrimony because it is a Public Order regime. This means that the Government’s rules apply to you regardless of what you might want! What else is new? Unless the regime and its dissolution have actually been adjudicated, nor can either party will these assets to third parties prior to the division.

Family Patrimony is made up of, and only of, the following asset categories (including any debts related specifically to them): the primary residence, secondary residences (yes the yacht or camping trailer too), furniture in said residences, automobiles (owned by a party not by a company or leased), RRSPs and pension plans owned by a party (unless you are, were or are married to a Federally nominated Judge – go figure!) and the R.R.Q. (Régime des Rentes du Québec), and that is it, if you signed a marriage contract making your matrimonial regime Separation as to Property. That means every other type of asset and debt belongs 100% to the party under whose name they are registered.

There are of course always exceptions, deductions, and arguments to be made which can have an impact on the final composition and partition of your Family Patrimony, but for this column we will only consider the above as written and without any qualifications.

So, notwithstanding the Family Patrimony, a party’s unregistered Mutual Fund portfolio of
$1 000,000.00 (for example) does not fall in, nor do any registered companies held in whole or in part by only one party. That can add up quickly. There are other possible claims to be made but they are not automatic and they are usually not easily seizable, if at all, prior to the Divorce Judgment, depending on the nature of the asset, and your matrimonial regime.

Now we return to our unmarried cohabiting couples. You can contract on all current and future assets and debts acquired during the period you are together by the terms and obligations you establish in your contract, including all the assets/debts that, if you were married, would be considered Family Patrimony and therefore, excluded from contracting. So much power – so little used. Why?

Well, the 3 most frequent reasons I hear are;

  1. “We have nothing.” (I hear this too from married couples who didn’t get a marriage contract). Do people really think they will continue to have nothing as the years go by?
  2. “It’s not romantic and besides, nothing will happen.” (again, same statement by married couples) or worse, “It will cause a fight”. Well, if you are going to fight about this contract before getting together, do you really think it will be easier later on or if you split? (Come on people, wake up!) It’s a good indication of why you shouldn’t be getting together in the first place.
  3. And my favourites, “I thought everything was 50/50 – we are Common Law!” (conjoints de fait) -or- “We’ve been together 20+ years, you mean I don’t get anything?” “Don’t I get 1/2 of the house/support?” My reply to these 3 questions is: “No, correct and no!”

So seek professional legal (and financial) advice before and set down everything you want to see happen in the event of a split – and please don’t wait till the day before you move in! Be smart, protect yourselves, no one else will and it is after all your responsibility, so don’t complain down the road if you don’t heed this advice now!!

Any questions out there?!

Me Hammerschmid B.Sc., LL.L., is a practising Family Law Attorney since 1982 and the Senior Attorney at Hammerschmid & Associates at 1 Westmount Square, Suite 1290, Secretary of the Family Law Association of Quebec since 1985, and can be heard monthly on the Tommy Schnurmacher Show on CJAD.
She can be reached at (514) 846-1013 or by e-mail at hammerschmid@vif.com.
All inquiries will be treated confidentially.

This discussion is not intended as complete legal advice to any particular case as it is a general discussion only and cannot be relied upon prior to obtaining the services of a qualified professional.