THE ISSUE OF THE FAMILY RESIDENCE DURING A DIVORCE OR SEPARATION CASE:

There are many different things to think about and discuss while going through a divorce. There are the children first and foremost and their well-being but also the division of the assets of the parties.

One of the major assets that the parties may possess is their Family Residence. This following general information is addressed mainly to couples who are married or in a civil union, however, in today’s world, it is important to keep in mind the changing demographics that exist and that the courts are now rendering judgments, pending the final outcome of the case, of couples that are not married, similar to those of married couples and living in civil unions in the event that minor children are involved.

The Former Family Residence forms part of the Family Patrimony and, unless the parties had renounced to the application of the Family Patrimony via a notarial act prior to January 1st, 1991, it’s net value is normally partitioned equally between the parties.
<div class=”boitegrise”>In the event that the Former Family Residence was purchased solely by and in the name of one of the parties, it is highly recommended and advised that the party who is not a registered owner of the property ensure that a “Declaration of Family Residence” is registered with the Office of the Land Register (Registre Foncier). This declaration protects the non-registered owner of the home from the alienation and lease of the property without their consent or knowledge.

In accordance with articles 404, 405 and 408 of the Civil code of Quebec (CCQ), is a declaration was previously registered against the property, the spouse may apply to have it annulled if the property is with fewer than 5 dwellings. A spouse who has not consented to the alienation of a property with 5 dwellings or more can also apply to have it annulled or request that they be granted a lease from the new owners for the dwelling they are occupying. This ensures that all parties are aware of the on goings of the properties they may be entitled to a share of

You are probably wondering who gets to stay in the Former Family Residence during the divorce proceedings. While there is no rule absolutely set in stone, it is common for the courts to award the right of the use of the Former Family Residence to the spouse who has custody of the children. It is however imperative to keep in mind that the court will also examine the financial capacity of the parties when making such a decision and also the length of time they have been living separate and apart but under the same roof. For instance, should the parties be in a precarious financial situation and in the midst of trying to sell their residence, it may be likely that the court will maintain this status quo.

The court may also rule, depending on the custodial arrangement, that the parties will share the use of the residence all while ensuring that the children stay in the residence. The parents will alternate residing in the residence with the children until a final judgment or agreement on the property. As you can see, it is not clear cut and many scenarios are possible as each case is a case on its own. One party can also certainly decide to move out of the Former Family Residence pending the outcome of the proceedings. It is important to keep in mind that the spouse did not lose any of their rights to their share of the Residence nor to the furnishings garnishing said residence. Their right to the use of the property however has been limited.
For more information on Family Residences and the division of assets, do not hesitate to communicate with our office.
Ofelia Lamanna, attorney

 

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