Me Julie Piché
The fact for spouses to own a residence in joint ownership is quite common, as is the fact for each spouse to contribute to the acquisition according to his or her financial situation, instead of sharing equally the purchase price. Whether the property is owned by one of the spouses only or by both of them, in equal or unequal proportion, it could be wise to examine what would happen in case of an eventual sharing.
Article 1015 of the Civil Code of Quebec stipulates that:
« The shares of undivided co-owners are presumed equal.
Each undivided co-owner has the rights and obligations of an exclusive owner as regards his share. Thus, each may alienate or hypothecate his share and his creditors may seize it. »
This measure establishes a presumption to the effect that the property is co-owned equally by the spouses. In this regard, it is not important to know if the individuals are married or in a common law relationship. The rules applicable are the same. For example, a couple that would have acquired a property in joint ownership would be affected by this measure, even if only one of them would have put down the initial payment.
In case of a separation, the Court could conclude to a liberality on the part of the spouse who has contributed the most, if the purchase contract or any contract (marriage or other) does not mention the investment, the contribution or the intention of eventually recovering such amount.
Even thought this presumption may be reversed, the evidence to be presented before the Court could show to be quite complex, especially without written documentation confirming said intention of an unequal ownership. In absence of such written documentation, the proof would have to be based on actions or attitudes that would demonstrate the fact the property should not be shared equally. Indeed, proving a more important monetary contribution would not be, as such, conclusive.
Furthermore, even thought one of the spouses did not financially contribute to the purchase of the property, he could have contributed differently (i.e. payment of bills, housework, upbringing of kids, etc.). and would therefore be entitled to equal sharing. This scenario is acknowledge by the Courts.
It should be noted that the Courts also acknowledge that the fact for spouses to mention both their names on the purchase contract, even if one of them has brought a more important monetary contribution, constitutes proof of their intention to share the good, and a tacit renunciation to a sharing different from that described at article 1015 C.c.Q.
The best way for spouses to protect themselves against such a situation when purchasing a property in co-ownership is to stipulate in the purchase contract the amounts invested by each spouse and/or their intention to eventually recover their investment. It is also possible to mention each spouse’s specific contribution in the wedding contract or in a common law relationship contract. A spouse may also oppose such a situation at any time throughout the relationship, in order to be able, in case of an eventual separation, to prove a different agreement between the parties and recover the amounts invested.
The present article is not a legal opinion and is published for information purposes only. For more information concerning this subject or any related subject, please do not hesitate to contact the writer or one of our professionals.