Hello. I am an attorney here in the USA (NJ) and my girlfriend…

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Hello. I am an attorney here in the USA (NJ) and my girlfriend…

Hello. I am an...

Hello. I am an attorney here in the USA (NJ) and my girlfriend lives in Quebec. She owns a house that she bought prior to marriage and was in her own name before marriage. She entered into a marriage contract before she got married. The contract stated that the house was 100 per cent hers and would remain 100 per cent hers after any divorce. During the marriage, she had to refinance and the bank required her husband to be added to the deed and mortgage in order to get the loan. The deed was done and he was added. Now they are divorcing, and he claims he is entitled to "his half" of her house. Question: does the marriage contract supersede the deed? or visa versa? and if he has acquired an interest in the house, how much? Basically what document controls here? thank you

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Answered in 6 minutes by:

10/7/2011

Lawyer: Jeremie John Martin, Lawyer replied 9 years ago

Jeremie John Martin, Lawyer

Category: Canada Law

Satisfied Customers: 1,413

Experience: I'm a bilingual attorney for the province of Quebec who goes to Court often for many clients.

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Me Jeremie XXXXX XXXXX :

Hi, I'm a Quebec family law attorney

Me Jeremie XXXXX XXXXX :

That pre-mariage contract was not legal in Quebec

Me Jeremie XXXXX XXXXX :

However, the Quebec civil code at section 418 already guarantees that the house stays the property of the person who owned it before the mariage

Me Jeremie XXXXX XXXXX :

This being said, what was the mortgage on this house prior to the mariage?

Customer:

and as to the Civil Code 418, this would apply to allow her 100 per cent ownership even with an intervening deed adding him?

Customer:

i am told that the principal balance on the original mortgage was 58K when the two of them got married. Then, they bumped the loan up to 110K in the refinance.

Me Jeremie XXXXX XXXXX :

What was the value of the house at the date of the marriage and how much is it worth now?

Customer:

110K then (8 years ago) 150 K now

Me Jeremie XXXXX XXXXX :

What is the mortgage now?

Customer:

mtg balance is like 106 now ...house worth 150 or so now

Me Jeremie XXXXX XXXXX :

The quick answer would be that your girlfriend will get 33 612$ of the 44 000$ of net value and the husband 10 388

Me Jeremie XXXXX XXXXX :

Those numbers should be different after agent fees, notary fees etc. are paid.

Me Jeremie XXXXX XXXXX :

Basically, your girlfriend came into the marriage with 47.22% of the house paid

Me Jeremie XXXXX XXXXX :

She can deduct that amount from all net value

Me Jeremie XXXXX XXXXX :

The question of the refinancing is a joker card and this is why both parties should consult a live lawyer to review all the facts before taking a decision

Me Jeremie XXXXX XXXXX :

It is sure than the husband is allowed to some amount

Me Jeremie XXXXX XXXXX :

That marriage contract is illegal in Quebec for the house

Me Jeremie XXXXX XXXXX :

It could be valid for other assets such as furnitures

Me Jeremie XXXXX XXXXX :

I hope I helped you to start in this file

Me Jeremie XXXXX XXXXX :

Please accept my answer so I can get credit for it, then I'd be glad to answer any follow-up question you have

Me Jeremie XXXXX XXXXX :

I practice almost only in family law

Me Jeremie XXXXX XXXXX :

These questions are complex even for senior lawyers who have been practising for 30 years because of the Quebec law of family patrimony that you cannot contract against

Customer:

I will accept your answers with one final question....so, the fact that she deeded the property into both names doesn't impact your answer? in other words, is the split as you say still the same regardless of the fact that he is now on the title to the house? thank you....i guess you can answer me Tuesday since Mon is Thanksgiving. I will then credit you. You've been extremely helpful. Thx

Me Jeremie XXXXX XXXXX : If you goggle

Me Jeremie XXXXX XXXXX : If you google Quebec civil code and read sections 414 and following ou will be able to confirm what I'm saying the familt

Me Jeremie XXXXX XXXXX : The family patrimony includes in Quebec the family house, the cars, the rrsp's, and public pensions for retirement.

Me Jeremie XXXXX XXXXX : The house is the property of the spouse regardless of the name on the deed

Me Jeremie XXXXX XXXXX : These rules cannot be bypasses by a pre nuptial contract

Me Jeremie XXXXX XXXXX : However it is legal to do a pre nuptial for assets, stocks, businesses, but not the house

Me Jeremie XXXXX XXXXX : This being said, section 418 permits to deduct the portion of the house that was paid before the marriage by one spouse at the date of the marriage

Me Jeremie XXXXX XXXXX : You can ask follow up questions of you want, thank you for accepting my answer!

Jeremie John Martin, Lawyer

Category: Canada Law

Satisfied Customers: 1,413

Experience: I'm a bilingual attorney for the province of Quebec who goes to Court often for many clients.

Verified

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