Matrimonial Regimes and Their Impact on Mortgage Transactions

The choice of matrimonial regime in Quebec has important legal and financial consequences that directly affect ownership rights and mortgage transactions. The Civil Code of Quebec provides for two main regimes: the partnership of acquests, which is the default legal regime applicable in the absence of a marriage contract, and separation of property, which must be stipulated in a marriage contract drafted by a notary. Mortgage brokers must thoroughly understand these regimes to properly document financing files, adequately advise their clients and ensure the necessary consents are obtained.

Partnership of Acquests: The Default Regime

The partnership of acquests applies automatically to any couple married in Quebec without a marriage contract (art. 432 C.C.Q.). Under this regime, assets are divided into two distinct categories. Private property includes assets owned before marriage, assets received by inheritance or gift during the marriage, and assets acquired with the proceeds of private property. Acquests are all assets acquired during the marriage with employment income, business income or investment returns. Upon dissolution of the regime (separation, divorce or death), each spouse retains their private property and receives half the value of the other's acquests. If the family residence was acquired during the marriage with employment income, it constitutes an acquest whose value will be shared.

Separation of Property: A Contractual Choice

Separation of property is a conventional regime that must be stipulated in a marriage contract drafted by a notary before or during the marriage. Under this regime, each spouse is the exclusive owner of their property and responsible for their own debts. There is no concept of acquests or property sharing upon dissolution of the regime, which considerably simplifies the situation in case of separation. However, it is crucial to understand that even under separation of property, the family patrimony (family residence, furnishings, vehicles, pension rights) is always shared equally, as it is a public order regime.

Concrete Implications for the Mortgage File

• Verify the matrimonial regime by consulting the notarized marriage contract or confirming the application of the default regime (partnership of acquests) with the client
• Obtain spousal consent for mortgaging the family residence regardless of the matrimonial regime (art. 404 C.C.Q.)
• Document the matrimonial regime in the financing file for the lender, as it affects risk assessment and required documents
• Understand the regime's impact on debt service ratio calculations: under partnership of acquests, one spouse's debts may affect the couple's overall assessment
• Advise clients in separation situations on the implications of family patrimony and acquests partition on their future borrowing capacity
• Inform clients of the possibility of changing matrimonial regimes by notarial act, a change that must be published at the RDPRM

Regime Impact on Mortgage Qualification

The matrimonial regime directly influences mortgage qualification. Under partnership of acquests, lenders often consider that both spouses have an interest in the residence acquired during the marriage, even if only one is registered on the title. One spouse's debts may impact the overall risk assessment. Under separation of property, the situation is clearer: only the owner and their income and debts are primarily considered. However, spousal consent remains necessary for the family residence. The broker must adapt their analysis according to the regime and ensure all required documents are obtained.

Changing Matrimonial Regimes

Spouses can change their matrimonial regime during the marriage by having a new marriage contract drafted by a notary (art. 438 C.C.Q.). This change requires the free and informed consent of both spouses and must be published at the Register of Personal and Movable Real Rights (RDPRM) to be enforceable against third parties. The change does not retroactively affect existing creditors' rights, meaning a mortgage already granted retains its validity. The mortgage broker who learns that a client is considering a regime change should direct them to a notary to assess the legal and tax implications of the change.

The interaction between matrimonial regimes and mortgage transactions in Quebec illustrates the unique complexity of the province's civil law system and its impact on everyday real estate financing. Unlike in common law provinces where property ownership is more straightforward, Quebec's dual system of matrimonial regimes combined with the mandatory family patrimony creates layers of rights and obligations that mortgage brokers must carefully navigate. Professional competence in this area distinguishes knowledgeable Quebec mortgage brokers and enables them to provide superior service to their clients, particularly those going through significant life transitions such as marriage, separation or estate settlement that may require careful coordination between matrimonial law and mortgage financing considerations.