Is your relationship at a point where you are definitely considering a divorce? This article will help you better understand the different elements to consider for your divorce.
This discussion is in two parts. In the first part (A), we will discuss the general formalities/procedure of divorce. In the second part (B), we will discuss the practical elements of what is at stake for the parties in a divorce.
(A) THE DIVORCE PROCEEDINGS
1. Separation and divorce
Although the terms “separation” and “divorce” are both used in the everyday life to designate the end of a marriage, at law they are not the same. A separation is when two spouses no longer live together. However, for married couples, separation does not legally terminate the marriage.
Divorce, on the other hand, is the legal means to terminate the marriage. When both spouses agree on all matters concerning their divorce (for example : custody of the children, spousal support if required, and the partitioning of the assets and debts they have accumulated during the marriage), then this is considered to be an amicable divorce (or “by consent”), which is faster and less costly. If the parties do not agree, each of the matters of custody and/or support will be decided on by the Court and the divorce will be rendered after a trial before a judge.
2. The grounds for divorce
Under the Divorce Act, you can ask for a divorce if there was a breakdown of the marriage for one of the following reasons:
- You and your spouse have lived separate and apart1 for at least one year;
- Or you or your spouse has committed adultery;
- Or your spouse treated you with physical or mental cruelty.
These are the preliminary formalities to consider for a divorce. Now in the second part, we will discuss the practical elements of what is at stake for the parties in a divorce.
(B) THE PRACTICAL ASPECTS OF A DIVORCE
Essentially, divorce is about two (2) central subjects. The first subject, is about the children. The second, is about « money ».
1. The Children
If the parties are parents of children who are minors2, the Court is bound to oversee and protect their best interests. Under this overriding principle, the subject of the children essentially concerns first, custody (or residential time) and the family residence. Second, child support.
Custody (residential time)
Who will the children reside with ? Will the custody of the children be shared between the parties? Or, will the children reside primarily with one parent and the other parent will have visitation rights (access rights)? This is the first subject that the parties must decide on. Also relevant to this subject is, who remains in the family residence, or in other words, who moves out? If the parties cannot agree on custody, access and who moves out of the family residence, the Court will decide based on the principle of the best interests of the child.
Once the first issue of custody is decided, child support can be established3. Child support is comprised of basic child support, post-secondary expenses, and, in some cases special expenses4. Basic child support is determined by the child support tables. The amount of basic child support one parent will pay to the other parent, for the benefit of the children, will depend on the type of custody and how much income each parent earns.
So, on this first subject matter of the children, if the parents agree on the issues of custody and child support, then the second issue of « money » or financial matters, can be discussed.
2. The Financial Matters
We will now discuss the financial matters in two parts below. First, the issue of spousal support. Second, the issue of the partition of the net assets and liabilities accumulated by the parties during their marriage.
If, as a result of the breakdown of the marriage, a spouse is not financially autonomous, then spousal support (both in terms of how much and for how long) will be an issue to resolve. Spousal support will be determined in function of the income and needs of each spouse.
The partition of assets and liabilities
Marriage results in the establishment of the primary matrimonial regime. It is called the family patrimony. Parties who live in Quebec, upon their divorce, are subject to the family patrimony. Essentially under the family patrimony rules, all of the assets and liabilities of the parties accumulated during the marriage are partitioned equally. It does not matter who is the owner. There are only a few limited exceptions. There are four kinds of property that fall under the family patrimony.
First, the family residence owned by the parties (and any secondary residence, such as a country home, used by the parties). It is the net value that is equally partitioned.
Second, all of the furniture and moveables furnishing said residences.
Third, the net value of the vehicles owned by the parties and used for family travel.
Last, the pension rights accumulated during the marriage. These include, RRSP’s, company pensions and the government RRQ and CCP pensions.
Any other property that is not included in the family patrimony is subject to the secondary matrimonial regime. If the parties, before their marriage, entered into a marriage contract before a notary and chose the regime of “separate as to property”, then each party will keep their own property within the secondary regime. But, if they did not enter into a marriage contract, then by default the secondary matrimonial regime will be the regime of Partnership of Acquests. In principle, under this regime, the property is equally partitioned subject to certain exceptions.
This completes our general explanation5 of the financial aspects of a divorce and the practical elements of what is at stake for the parties in a divorce.
1 This condition of living separate and apart can be met in two ways, namely: (1) the parties live in separate residences, or, (2) under certain circumstances, the parties live separate and apart within the same residence.
2 Or the children are not autonomous under the law.
3 Indeed child support falls under the subject matter of “money”, but, since it is fundamentally related to the subject of the children, and for ease of explaining the process, we discuss this in this section on the children.
4 We will not discuss this in this article, rather, this will be the subject for another article.
5 This article only summarily reviews the general concepts. It does not constitute a legal opinion nor does it replace the necessity of a consultation so that the facts of each case be specifically applied to the law and its exceptions.