There are several things to discuss in a divorce. First of all, there are the children, their well-being, the division of the goods of the parties and the management of their expenses.
One of the important assets is the family residence. The family residence is part of the family patrimony for married couples and, unless the parties have waived the application of the family patrimony by notarial act before January 1, 1991, the net value is generally shared equitably between the parties
In the event that the family residence was acquired solely by and in the name of one of the parties, it is strongly recommended and advised that the non-owner of the residence shall ensure that Declaration of family residence “be registered with the land register. This statement protects the party who is not a recognized owner against alienation and rental without their consent or knowledge. In virtue of Articles
Under articles 404, 405 and 408 of the Civil Code of Québec (“CCQ”), if a declaration has been previously registered against the property, the spouse can request cancellation when the property is less than five (5) dwellings. A spouse who has not consented to the disposition of a property with five (5) dwellings or more may also apply for the annulment or may require the new owners to grant them a lease for the dwelling they occupy. . This ensures that all parties are aware of possible transactions on the property for which they would have an interest.
Wondering who will reside in the former family residence during the divorce proceedings? Since there is no hard and fast rule, it is customary for the courts to give the guardian spouse the right to use the former family residence. It is, however, imperative to keep in mind that the Court will also examine the financial capacity of the parties when making this decision, as well as the length of time the spouses have bene separated and the length of time they have lived together under the same roof. For example, if the parties are in a precarious financial situation and in the process of selling their home, it is highly likely that the Court will maintain this status quo. The Court may also decide, depending on the custody arrangement, that the parties will share the use of the residence while ensuring that the children will remain in the residence. Parents could alternate their presence in the residence with the children until there is a final judgment or agreement on the residence. One of the parties can certainly decide to move from the old family residence pending the outcome of the proceedings. It is important to keep in mind that the spouses have not lost their rights to their share of the residence or the furniture that lodges the residence. Their right to use the property however is limited.
For any additional information on the family home and the property division, do not hesitate to contact us.
Azran & Associés Avocats Inc.
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OTHER ARTICLES TO READ IN THE FAMILY LAW CATEGORY:
Matrimonial regimes in Quebec
Common law partners
Protection and custody of children
Representing the child at court