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Are there laws that override the pre-nuptial agreement?

Posted in Laurentiens, Location, Property, Quebec by Questions on June 11, 2014

If one party owned, prior to marriage, the home in which the couple subsequently lives, and if that home is included in a pre-nuptial agreement as belonging exclusively to that party, can that party claim the home in the event of divorce, or are there laws that would override the prenup provision? Relatedly, is it possible to include in a prenup that earnings of one party during the marriage would continue to belong exclusively to that party? Would such a provision validly apply in case of divorce? Many thanks.

1 Expert Comment

  1. On June 11, 2014 at 3:07 pm
    Andrew Heft said:

    In Québec, legal provisions pertaining to the family patrimony override any marriage contract or pre-nuptial agreement that the parties may have between them. Included in the family patrimony is the family residence which value would then be separated among the parties. It is important to note however that a distinction must be made between the partition of the value of the family residence and actual possession or ownership of the family residence.

    While included in the family patrimony, it is nevertheless possible to deduct amounts from the partitionable value to reflect the fact that part of the net value of the house belonged to either of the parties before the marriage and/or some of the net worth of the house was paid using donations or an inheritance received by either of the parties. For example, if the family residence was completely paid off at the date of marriage then that party would be able to deduct 100% of the value of the house. In this scenario there would be no value in the family residence to share with the other party.

    As for your second question, revenue is not included in the family patrimony and could be excluded from any partition of assets by means of a valid marriage contract or pre-nuptial agreement.

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