Separate Property

A marital property regime wherein property acquired or owned by a married person and which, notwithstanding the marriage or, where recognized, a marriage-like relationship, remains the separate property of the spouse who acquired or to whom was gifted the item of property.

In the event of a permanent separation or divorce, the law provides for the fair division of property or assets acquired by the spouses during their period of cohabitation.

Traditionally, a wife had few property rights. In the eyes of the law, historically, she was absorbed within the legal person of her husband and thus, upon divorce, had no entitlement to jointly-enjoyed family property.

Divested of an opportunity of earing money while raising children, while her husband worked, the common law protected the husband by providing that whatever was bought by a spouse during marriage belonged to that spouse; a separation of property regime. This reflected the traditional common law position and was not unknown, either, to the civil law.

For example, §485 to §488 of the 2009 Quebec Civil Code, under the heading Separation As To Property (séparation de biens) and are as follows and represents an excellent summary of the matrimonial property regime:

"The regime of conventional separation as to property is established by a simple declaration to this effect in the marriage contract.

"Under the regime of separation as to property, the spouses, individually, have the administration, enjoyment and free disposal of all their property.

"Property over which the spouses are unable to establish their exclusive right of ownership is presumed to be held by both in undivided co-ownership, 1/2 by each."

Even historically, the civil law had a community property regime as early as the Coutume de Paris and notwithstanding the submission of the wife to the husband in terms of administration, the assets acquired during marriage were still subject to equal division if and when the marriage failed.

With the emancipation of women rights, the common law required adjustment.

To accommodate the inequity of the common law towards childbearing, child-rearing and homemaking mothers who, during those years, were unable contribute financially towards the acquisition of income or family assets or, as a consequence, be placed on title thereof, statute law eventually gave women the right to hold separate income or property.

This being still insufficient, common law jurisdictions have since adopted one or the other, or permutations of each or both, two basic but distinct family property regimes.

In a nutshell, community property regimes create a legal presumption that all income or every asset acquired by either spouse during the marriage belongs equally to both. Innovative terms such as matrimonial assets and matrimonial property highlight this new community property regime, also called community of property or marital property.

Although subject to statutory distinctions in most jurisdictions, the general rule in community property jurisdictions is that each spouse has an equal entitlement to a half interest as tenant-in-common to any asset or income acquired during the marriage.

In the alternative, a separate property regime, the legal presumption is that individual assets, incomes or pensions belong to whichever spouse paid for it, earned it, is on title or to whom the asset was gifted and is not subject to sharing with the other spouse.

Many community property jurisdictions give married persons the ability to opt-out of a community property regime and instead, opt-into a separate property regime, by way of a marriage contract or agreement or, usually with compensation in regards to other entitlements, by way of a separation agreement.

REFERENCES:

• Civil Code of Québec, Statutes of Québec 1991, Chapter 64
• Lafond, Pierre-Claude and Lefebvre, éditeurs, L'Union Civil (Montréal: Éditions Yvon-Blais, 2003).