Understanding the operation of the partnership of acquests
Partnership of acquests is one of the most popular matrimonial regimes in Canada. It delimits the perimeter of the property of the spouses. Its many prerogatives attract many couples. The regime favours the sharing of common property and tends to preserve the personal property of each individual within the household. However, the mechanism is not immune to some flaws. Here are the specific features of partnership of acquests.
What is a partnership of acquests?
The default regime in Quebec, partnership of acquests was introduced in 1970.
Definition of partnership of acquests
Community of acquests (general terms) is the synonym for partnership of acquests (terms used in Canada). They both refer to the same matrimonial regime, which is written into the marriage contract of the spouses. As a reminder, a matrimonial regime defines the way in which the property of the spouses is managed throughout their life together. The system also describes their distribution in the event of a dissolution of the marriage.
The creation of a partnership of acquests requires a marriage contract. It takes the form of a clause in the official document.
In the event of a modification of the regime, each spouse must comply with the legal procedures. They must inform their creditors as well as their adult children, as indicated in article 1397 of the Civil Code. The latter then have 3 months to contest. If they object, the matter is referred to a family court judge.
What are the characteristics of the partnership of acquests ?
The word “acquests” means “property acquired by a spouse during the marriage”. This is what the matrimonial regime of partnership of acquests is all about. Each spouse remains the owner of the property acquired before the marriage. In the legal jargon, this is referred to as own property. Property acquired throughout the marriage is placed under the community regime, with the exception of personal property received as a gift or inheritance.
The regime of partnership of acquests obeys the principle of solidarity between the spouses. In other words, it imposes the pooling of property acquired during the union, in the same way as debts contracted by a spouse.
The partnership of acquests moderates the principles of its associated matrimonial regime: the separation of property. The regime applies the laws of the matrimonial regime reduced to the community of acquests.
The partnership of acquests also corrects the flaws of the regime of universal community. The latter stipulates that all the property of the spouses is included in the community.
The assets that make up the household in the regime of partnership of acquests
The regime of partnership of acquests distinguishes between two types of property: own property and acquests.
What are proper properties?
Private property refers to individual assets that belong only to the acquirer. It was acquired before the marriage. Their value is not subject to division, as is the case in the partnership of acquests regime.
By law, savings are private property. Likewise, property received as an inheritance or gift is considered private property, regardless of its nature (electronic gadgets, cash, clothing, etc.)
Alimony, disability pension belong to this category. The same applies to insurance benefits and financial compensation received as a result of physical or moral injury.
Rights and benefits received under a pension plan, insurance or annuity are added to the list of own property.
Profits and income from a business are also included. Finally, property acquired to replace an own property as well as insurance proceeds related to it are own property.
What are acquests?
Acquests are assets accumulated by the spouses during the marriage. They are subject to division at the end of the matrimonial regime. This category includes income as well as the fruits of investments. Property acquired for the most part by way of acquests also answers to the name of acquests.
On the other hand, debts and property received before the marriage are own property. However, their fruits are acquests.
Until proven otherwise (specified in the marriage contract), acquests or movable and immovable property acquired during the marriage are community property.
As a general rule, property that cannot be proven as property of the couple is automatically transformed into acquests.
How does the regime of partnership of acquests work?
The regime favours the separation of property, guaranteeing the independence of the spouses’ assets.
The rights of the spouses during the marriage
Throughout the marriage, the spouses manage, grant and use their income and their own property as they see fit (or acquests) under the regime of partnership of acquests. This right engages a responsibility of the debtors on their debts, except the debts contracted to meet the basic needs of the family, such as: food, clothing, maintenance of the family residence..
The husband or wife must, however, obtain the agreement of his or her partner before offering as a gift property of high value. This exception mainly concerns income property acquired during the marriage. The partner may at any time request the cancellation of the gift and, if necessary, take the matter to court.
How the property is divided
Divorce, the death of a spouse and the modification of the marriage contract put an end to the current matrimonial regime. These events trigger the division of property. The division begins with the family assets. Then, the spouses proceed with the division of the other property. Owned property remains with its owner, while acquired property is divided between the ex-spouses.
Each spouse has the right to renounce or accept the distribution in value of the acquests without the consent of the ex-partner. They can also exercise their right of veto on the division of certain assets.
In case of death, the survivor has the right to refuse the distribution of the property to the heirs. If necessary, a mediator intervenes. He or she will act as a link between the parties involved (the heirs and the surviving spouse). His objective is to reach an impartial agreement.
How to calculate the acquests?
In the case of a divorce, the spouses leave with their own property and divide their acquests. A formula determines the acquests. It is the difference between the initial and final assets of the spouses. The debts contracted during the marriage are then taken into account. The final result of these operations is the “net acquests” to be divided.
The division also involves another calculation based on several elements:
- the portrait of the acquests and the own property ;
- the rewards or adjustments allowing the spouses to recover the amount of a property used for acquests and vice versa;
- the debts attached to the property.
The calculation requires a great deal of expertise in the legal field. The intervention of a lawyer is therefore indispensable, even in the case of a divorce by mutual consent.
In view of its complexity, the regime of partnership of acquests is suitable for young married couples who still have only a small fortune. The estimation of the acquests will be within everyone’s reach in case of divorce.
The importance of a notary in the regime of partnership of acquests
The drafting of a marriage contract requires the presence of a notary. The notary will help you make the right provisions in the contract. If necessary, he or she will advise you on the additional measures to be included in the agreement, such as the precipitate clause for the common dwelling. Following the death of a spouse, this provision allows the survivor to take a share of certain assets (such as life insurance or a home). This clause in the contract can even result in the survivor taking the entire property. The taking takes place before the division and does not impact your inheritance in any way.
The law of May 22, 2019 allows married couples to change their matrimonial regime, subject to a few conditions. The notary will provide you with the essential recommendations for the initiative and will assist you in recording the new provisions in the contract.
What are the advantages and disadvantages of the regime of community of acquests?
If the household dissolves, the clause in the marriage contract is intended to distribute the shares of each individual.
The advantages of the regime of community of acquests
The establishment of the matrimonial regime requires only a minimum of administrative steps. As an official regime, its establishment is free. The spouses are free to request the services of a legal expert or not. However, the notary will adapt the contract to your situation, which is why it is so important.
In the case of a divorce, the distribution is simple. The ex-spouses receive half of the acquired property. This measure benefits the inactive spouse (at home or unemployed) who has no income. If the spouse dies, the survivor receives half of the joint property, while the other half goes to the heirs of the deceased. In the perspective of patrimonial independence, the regime protects the survivor from the forced sale of the real estate and from inequitable division.
The disadvantages of the reduced community of acquests
Debts contracted during the marriage are pooled, making both spouses responsible for the other’s debts.
Decisions concerning property of great value require a common agreement between each individual.
Each spouse is obliged to submit to the rights of the other. After a divorce, the spouse with a comfortable financial plan sometimes feels disadvantaged because of the way the joint property is divided.
