Background
In Québec, unmarried couples [1] do not currently benefit from the same rights as married couples. Indeed, married spouses benefit from the legal application of numerous public order provisions, including notably the rules pertaining to the partition of the family patrimony and claiming spousal support [2]. A default legal matrimonial regime will also apply to married spouses if they do not sign a marriage contract [3].
In contrast, de facto spouses do not have a right to claim spousal support or to partition the value of the other spouse’s property upon the breakdown of the relationship. They would have to enter into an agreement adopting these protections, since there is no automatic legal regime for them. Even though child support is payable for the benefit of children of unmarried couples, said children are often adversely affected after a separation considering one parent may be economically disadvantaged.
The distinction between the rights of married spouses and de facto spouses has long been the topic of discussion and debate in Québec, especially since the Supreme Court of Canada rendered the decision Eric v. Lola [4] in 2013. We have been eagerly awaiting legislative reform on this topic for many years.
Application of the Act
On June 30, 2025, an Act respecting family law reform and establishing the parental union regime (the “Act”) will come into effect and will create a new legal regime for certain de facto spouses.
The Act addresses, in part, the lack of a legal framework for some de facto spouses and aims to better protect their children. More specifically, the new parental union regime seeks to provide greater legal protections to unmarried spouses who become parents of a common child born on or after June 30, 2025, live together, and present themselves publicly as a couple [5].
The Act therefore creates a distinction between children before and after June 30, 2025. It also fails to protect spouses who do not have children.
Changes Under New Regime
The new law notably introduces the following changes:
1. The creation of a parental union patrimony
At the end of the parental union, the net value of the parental union patrimony will be divided equally between the spouses or between the surviving spouse and the heirs, similarly to the rules for the division of the family patrimony. The parental union patrimony will include the following property owned by either spouse: residences of the family or the rights which confer use to them, the movables that serve the use of said residences, and the motor vehicles used for the transportation of the family. However, the rights accrued under a pension plan will be excluded from said patrimony.
The net value of property acquired prior to the parental union, through inheritance or donation, as well as the proportionate increase in value, can be deducted from the partition of the parental union patrimony.
Moreover, the de facto spouses could modify the composition of the patrimony or completely “opt out” of its application by mutual agreement, by signing a notarial deed within 90 days of the commencement of the union for the regime to be deemed to have never been established. It is also possible for de facto spouses to withdraw after the 90-day delay mentioned above by signing a notarial deed confirming same, and the value of the patrimony accumulated as of that date will be subject to partition.
As such, unlike the public order provisions of the family patrimony, couples can still opt out of the parental union.
2. Rules related to the use of the family residence
In the event of separation, a spouse may ask to have the exclusive use of the family home and the movables for a certain period. That said, unlike married couples, the de facto spouse must make this request within 120 days of the end of the parental union.
3. Claiming a compensatory allowance
Unmarried spouses in a parental union may seek a compensatory allowance for their impoverishment as a result of their contribution in goods and/or services to the enrichment of the other spouse’s patrimony during the union. This recourse was available to married couples, though the definition will be expanded to include spouses who form a parental union.
It is worth noting that de facto spouses were already able to seek indemnification from the other spouse through a claim in unjust enrichment, which is a last resort recourse that can apply in various circumstances, including outside of romantic relationships.
That said, the Act now allows a de facto spouse making a claim for a compensatory allowance to seek their legal fees through a provision for costs in some situations, to cover part of the costs of the proceeding. This is an important advancement.
4. Rules related to inheritance
The Act provides that de facto spouses in parental unions may inherit where the other spouse dies without a will (ab intestate). The surviving spouse will receive one third of the net value of the estate and the children will receive the other two thirds. This is an important change from the current law, which only provides surviving spouses who are married to inherit from the deceased when the latter does not have a will.
The amount owing for the partition of the parental union patrimony must be paid to the surviving spouse before the remainder of the estate is settled.
If you have any questions or seek further information on the new parental union regime, do not hesitate to contact one of our lawyers, who will be able to advise you.
References
- This article does not refer to civil union.
- Sections 415 and 585 C.c.Q.
- Sections 448 et seq. C.c.Q.
- Eric v. Lola, 2013 SCC 5
- Bill 56
