TY - JOUR
AU1 - Talpis,, Jeffrey
AB - Abstract Among the most difficult problems faced by couples at the breakdown of marriage is the division of marital assets. For parties whose circumstances bring them into the realm of private international law, additional and complex problems arise. This article discusses some of the more pervasive—and interesting—problems arising today in the division of assets on the breakdown of marriage under Québec’s private international law regime. In addition to laying out the issues and problems, the author presents his observations and personal opinion on each issue, from the standpoint of both theory and practice. Introduction and background Among the most difficult problems faced by couples at the breakdown of marriage is the division of marital assets. For parties whose circumstances bring them into the realm of private international law, additional and complex problems arise on top of the already formidable challenges they must contend with as they proceed under domestic law. This article discusses some of the more pervasive—and interesting—problems arising today in the division of assets on the breakdown of marriage under Québec’s private international law regime. In addition to laying out the issues and problems, the author presents his observations and personal opinion on each issue, from the standpoint of both theory and practice. In order to examine special issues and problems within Québec’s private international rules relating to the division of marital assets, it is necessary to ground the discussion in a proper understanding of the different approaches followed by common law and civil law jurisdictions in relation to matrimonial property regimes.1 Legal rules relating to matrimonial regimes in the civil law and matrimonial property laws in the common law jurisdictions are profoundly anchored in the historical and juridical traditions of each. Originally, common law jurisdictions regarded the property rights or claims of spouses for a division of property as unaffected by the fact of marriage. Each party was presumed to retain those assets which he or she brought to the marriage and to possess as separate property anything acquired in the course of the marriage. Recognizing, however, that the wealth accumulated by each spouse is likely to be the product of combined efforts, the thinking within common law systems evolved and they now treat marriage as an economic partnership as well as a social one. Today, most common law jurisdictions allow the courts to divide in an equitable manner all or certain property acquired by either or both spouses at the time of divorce or some other triggering event and, under some laws, at death in favour of a surviving spouse. In Canada, the common law provinces and territories have all adopted statutes governing matrimonial property law that provide for a presumption of equal sharing or deferred sharing schemes with a discretionary power to order an unequal division in exceptional circumstances. For example, sections 5(1) and 5(2) of the Family Law Act of the Province of Ontario2 stipulate that upon divorce, separation, or nullity of the marriage, or upon the death of a spouse in favour of the surviving spouse, the net family property of the spouses is to be divided equally. Section 6, however, provides for unequal distribution if ‘equalizing the net family properties would be unconscionable’. Additionally, there are equitable remedies under the common law such as those arising pursuant to a constructive trust or a resulting trust, primarily based on claims of unjust enrichment. These remedies exist as complements to these regimes and are often employed by the courts. The equitable distribution laws in the USA and/or the deferred sharing statutes in the common law jurisdictions of Canada are usually not imperative. Although the parties cannot always opt out of certain narrowly defined rights relating to an asset, they may create a ‘regime’ that is functionally equivalent to a civil law matrimonial regime of separation as to property. In civil law jurisdictions, matrimonial property centres around the concept of matrimonial regimes.3 A married couple is viewed as living under a matrimonial regime and the incidents of their property affairs are determined by it, whether such incidents arise during or upon the dissolution of the marriage. In almost all civil law jurisdictions, the legal regime is some form of community as to property or partnership of acquests, or deferred partnership of acquests. That said, the state in such jurisdictions nearly always refrains from imposing a single system on the spouses. Rather, future spouses, and even spouses already married, are permitted to choose amongst statutory matrimonial property regimes or ‘personalized’ regimes by way of a marriage contract. In the Province of Québec, the default legal regime for married persons, as set out in the Civil Code of Québec (CCQ),4 is known as the partnership of acquests although the parties may adopt a conventional or personalized matrimonial regime by marriage contract (Article 432 CCQ). Furthermore, certain civil law jurisdictions have legislated rules that affect the patrimonial rights of spouses and which are imperative and apply regardless of the particular matrimonial property regime in effect. Under the rules of the Province of Québec, for example, there exists what is known as the ‘family patrimony’, composed of certain defined assets, the net value of which is divided equally regardless of the matrimonial regime governing the spouses and irrespective of the title to such assets upon separation as to bed and board, nullity or dissolution of the marriage by divorce or death. However, as in the common law jurisdictions, the court has discretion to order an unequal division based on any number of narrowly defined considerations.5 Additionally, the same triggering events utilized in the context of the family patrimony could lead a court to order one spouse to pay a compensatory allowance to the other (Article 427 CCQ). Both the right to a partition of the family patrimony assets and a compensatory allowance are deemed ‘effects of the marriage’ and apply irrespective of the matrimonial regime. They cannot be waived prior to the triggering event giving rise to a claim. The differences in the rules applicable to the division of matrimonial property, whether under civil law, common law, or other legal frameworks, raise complex problems as to the law applicable to matrimonial property regimes in private international law. Choice of law Objective connection According to Article 3123 CCQ, the law of the common domicile of spouses at the time of their marriage applies. The provision also stipulates that absent a common domicile of the future spouses at the time of solemnization of their marriage, the law of their first common habitual residence applies, failing which the law of their common nationality at the time of their marriage applies or, failing that, the law of the place of solemnization of their marriage applies. Looking at the first alternative connection, the first common habitual residence, certain issues remain somewhat controversial, including the very determination of what constitutes a habitual residence. First, there is the question whether the spouses must live under the same roof for this rule to apply. contrary to the rules under the provincial statutes of common law Canada, I take the view that the spouses’ first common habitual residence does not mean that the spouses residing in the same country necessarily reside under the same roof,6 since choice of law is predicated upon the closest connection of the parties to the same state rather than to each other. Another issue concerns the case of future spouses who could not establish their first common habitual residence in the country in which they intend to reside immediately following their marriage (usually because of immigration laws), or who decide at the time of marriage to live in separate jurisdictions for a few years before establishing their first common habitual residence. The generally accepted opinion is that the first habitual residence must be established immediately following the celebration of the marriage, failing which, the law of their common nationality applies.7 Where the law of the common nationality applies, and the future spouses have more than one common nationality at the time of their marriage that has not arisen as a result of the marriage, no solution is provided. Given that the basis of the connection is the principle of proximity, the law of the nationality having the closest connection to the spouses should apply. If that is impossible to determine, then the law of the place of solemnization of their marriage should apply. Furthermore, since the doctrine of immutability or permanence of connection applies in Québec unless there has been a valid change by contract, the applicable law does not change by virtue of a change of localization of the connecting factor which determined the applicable law. Finally, in Québec, the doctrine of unity applies, contrary to the common law of the Canadian provinces and territories, unless a statute derogates from this principle of duality, as under section 15 of Ontario’s Family Law Act.8 Subjective connection In Québec, as in most other jurisdictions, couples may enter into matrimonial property agreements. These agreements are referred to in civil law jurisdictions as ‘marriage contracts’ and in common law jurisdictions as ‘spousal agreements’, ‘domestic contracts’, or ‘pre-nuptial agreements’. Applying the fundamental codal policy of party autonomy, Article 3122 CCQ is, on its face, a renvoi to the very liberal general rules governing party autonomy in international contracts. As a result, the future spouses have the power to select the law that will govern their marriage contract and their initial matrimonial property regime thereunder—whether or not the chosen law has a connection to the parties or their intended place of residence. They may also submit the law governing their matrimonial property regime to different laws altogether (Article 3111 CCQ). This option, however, is rarely chosen, due to the complexities of liquidation of multiple laws governing the matrimonial property regime, as well as the overriding principle of immutability. In the absence of an express choice of law, an implicit choice is possible so long as it can be inferred from the terms of the contract. If such inference cannot be made, the law of the state having the closest connection with the contract will apply (Article 3112 CCQ). Additionally, so long as it is permitted under the law of the place of solemnization of the marriage, Québec law recognizes the choice of a matrimonial property regime made by way of a declaration by the future spouses at the time of their marriage and in the act of marriage in lieu of a marriage contract. Enforcement of foreign religious acts of marriage as marriage contracts A topic of growing importance in the handling of marital assets upon breakdown of marriage concerns the recognition of foreign religious acts of marriage, such as Islamic Acts of Marriage, as marriage contracts and the determination of the law applicable to them. For example, in order to recognize an Islamic Act of Marriage or a ketubah under Jewish law as a marriage contract for the purposes of the conflicts of law under Québec private international law rules, the contract must at least contain an agreement between the parties as to the organization of the effects of their marriage, whether expressly or tacitly. This meeting of the minds is extremely important, since failing this condition, it is not a marriage contract. While some Islamic acts of marriage refer to the religious denomination of the spouses as Shia Islam or Sunni Islam, most provide nothing more than personal details about the spouses-to-be, and that the future husband will make a gift (mahr) to the bride at the time of marriage. Yet, the parties understand that in their custom, they will be governed by a functionally equivalent separate property regime. Although the question is controversial on both sides of the Atlantic, and further abroad in my opinion, under Québec private international law, the Islamic Act of Marriage constitutes a marriage contract. As a result, if the applicable law is not chosen, then it will be determined by their tacit intention if clear from the Act of Marriage or, if not, in accordance with the law having the closest connection.9 Enforcement of civil law marriage contracts in common law jurisdictions A problem has occasionally arisen in common law courts concerning the enforcement of marriage contracts executed before Latin-model notaries in civil law jurisdictions. Although the question of consent and vitiated consent are questions concerning the formation of the contract and should be governed by the law applicable thereto, the requirement of independent legal advice under the forum law is generally applied. While the Latin-model notary is required to act impartially, this requirement is generally satisfied if the notary has informed the parties as to their rights and obligations, which a common law court would assimilate to the requirement of acknowledgment. This is clearly short of giving personal independent legal advice to each. Nevertheless, in order to prevent future disputes where it is anticipated that the contract will or could be questioned in a common law jurisdiction, the civil law notary should require the future spouses to seek independent legal advice and furnish proof thereof to the executing notary, obliging them to provide full financial disclosure to each other. Change of the law applicable to the initial matrimonial property regime The CCQ is silent on the law applicable to a change of law governing the spouses’ matrimonial property regime. Article 3124 CCQ determines only the law governing the right to change their initial matrimonial property regime—as distinct from the law governing that regime. The provision provides that they may only modify their initial regime if permitted by and in accordance with the law of their common domicile at the time of the change. Where the spouses are domiciled in different states at the time of the change, Article 3124 CCQ stipulates that ‘the applicable law is the law of their common residence or, failing that, the law governing their matrimonial or civil union regime’. The lex causae under Article 3124 CCQ applies to the conditions of modification of the regime (eg through homologation, delays, and effects against third parties). If Québec law applies under Article 3124 CCQ, the newly designated matrimonial property regime applies only for the future and the parties may not stipulate that it applies retroactively (Article 433 CCQ). A clearer rule is provided under Article 22 of the European Union Regulation on the law applicable to matrimonial property regimes, which states that the conventional change of the law applies only for the future unless the parties agree otherwise.10 Retrospective change under a foreign law governing matrimonial property regimes In cases where the matrimonial property regime of the spouses is governed by a foreign law that has been modified and under the transitory rules of the lex causae affects spouses already married, the laws of most jurisdictions adhering to the principle of immutability apply the transitory provisions of the foreign law. Under Québec law, however, the doctrine of petrification of the legal situation applies, supported by the escape clause under Article 3082 CCQ. Accordingly, Québec courts apply the solution under the transitory provisions as long as the spouses were still domiciled in that jurisdiction at the time the transitory rules came into effect. Geographical limitations under a foreign statute governing the matrimonial property regime of spouses There are an increasing number of statutes that proclaim that the law of the enacting state shall apply only to transactions, events, or persons having certain connections to the enacting state. Whether because of increased protectionism, economic competition amongst states, or other reasons, there is today a greater tendency for legislators to specify whether a statute is to apply to cases with certain enumerated connections with their state, thus avoiding entry into the ‘dismal swamp’11 of the conflict of laws. The problem frequently arises where the foreign law applicable to matrimonial property regimes under the forum’s choice of law rule is governed by a statute. This is the situation in all Canadian common law provinces and territories, where the foreign law’s application depends on the existence of certain geographical connections to the province or territory.12 Recognizing that renvoi is rejected under Québec law (Article 3080 CCQ), where the geographical limitations under the foreign statute are not jurisdictional in nature, the problem for the court is to decide whether or not the geographical connection is a unilateral choice of law rule, in which case it must be ignored or whether the localizer is an inherent part of internal law, in which case it must be considered. The generally accepted view is that such geographical limitations are part and parcel of foreign internal law and should be taken into account, resulting in the application of the functionally equivalent legend of separation as to property and any other equitable rules such as constructive trusts. Unfortunately, while this approach may perhaps be more theoretically sound, it will—in practice—often result in an unjust situation. The task to find a just solution is daunting. The best practice would be to avoid the problem and one way to do this is for future spouses to make a marriage contract designating the law governing that contract and, in the presence of a statute governing matrimonial property regimes, to state their intention to have the statute’s provisions govern them (eg ‘opt-in’ provisions) even if they no longer meet the geographical or personal conditions otherwise required. Scope of the law applicable to the matrimonial property regime Traditional scope In Québec private international law, as in the laws of most if not all civil law jurisdictions, a broad scope has traditionally been given to the law governing matrimonial property regimes covering the following matters: the conditions for establishing a matrimonial regime (eg marriage and civil union); the composition and characterization of the property of the regime (eg private or common acquests, domestic property, marital and separate property, family property, or separate property); the property interests of spouses during the marriage and upon dissolution of the regime; the organization of the rights, powers, and obligations of spouses under the various matrimonial property regimes; the right to obtain an authorization of the court to act in case of the absence or refusal of a spouse to consent where necessary (rarely followed); the causes of dissolution of the regime (eg death, modification of regime, divorce, separation as to bed and board, nullity of the marriage, and prolonged absence of a spouse);13 whether the rights or claims to a division arise exclusively under fixed rules or whether they may result from a judicial discretionary power or both; whether the right to obtain a division of assets or to make a claim may be made on the dissolution of the marriage by death and if so, whether it is only in favour of a surviving spouse or whether it is transmissible in favour of the heirs of the deceased spouse;14 the moment in time when the liquidation and effects of the dissolution of the regime are to be determined (date of application to court or retroactive to the date when the couple ceased to live together); and the validity and enforceability of a conventional renunciation of a division of assets prior to the dissolution of the regime. In spite of the traditional broad scope, Québec courts and practitioners have gradually reduced the scope of application of the law governing matrimonial regime.15 The most flagrant example of this regretful approach is the characterization of the Québec family patrimony, discussed below. Equitable distribution of property in common law jurisdictions Prior to the mid-1980s, when Québec courts were confronted with traditional matrimonial property ‘regimes’ under a foreign law, such as community of property, partnership of acquests, or separation as to property, application of the foreign matrimonial property regime was relatively simple. For instance, when the common law jurisdictions did not provide for any rights of spouses to a share in the assets of the other upon divorce, they were considered to be ‘separate as to property’, as under Québec’s conventional separation as to property regime. However, once the common law jurisdictions introduced equitable distribution and eliminated the functionally equivalent separation as to property regime, Québec courts began to be confronted with an increasing number of requests by spouses to redistribute assets in an equitable manner pursuant to the laws of an applicable common law jurisdiction qua regime. These requests came forth even though the concept of ‘matrimonial regime’ was and still is officially unknown in the common law, and the concept of equitable distribution is officially unknown in Québec law. In the early cases, the courts refused to exercise the discretion under the lex causae, either by recasting the judicial discretion as a jurisdictional rule, by characterizing judicial discretion as ‘procedural’, or by refusing to give effect to retroactive changes in the foreign matrimonial property regime (ie where the spouses had established their domicile elsewhere at the time the new law empowering a court to exercise judicial discretion came into force). In seminal obiter dicta in the Québec Appeal Court decision, Palmer v Mulligan, Judge Louis Lebel, left no doubt as to the law governing the matrimonial regime of spouses includes judicial discretion to redistribute assets. He states: La notion de régime matrimonial, en raison de l’évolution législative, comprends désormais une possibilité d’intervention judicaire pour modifier la répartition des biens des conjoints lors de la dissolution du mariage. Dans la mesure où l’on applique la législation étrangère ou celle d’une autre province on doit tenir compte de cette législation comme partie du régime matrimonial.16 The family patrimony and other similar patrimonial effects of marriage Once the Québec legislature introduced the imperative application of the family patrimony rules in its domestic law in 1989, and then later, with the CCQ in 1994, added a choice of law rule governing the effects of marriage irrespective of the matrimonial regime (Article 3089 CCQ), it remained to be seen how courts would characterize the Québec family patrimony and similar rules under a foreign law. Québec law is now settled on this point. The courts have rejected the characterization of the family patrimony as either rules of necessary application17 or matters of matrimonial regime, despite strong pleas to the contrary.18 The family patrimony is now characterized as an effect of marriage19 and its rules will apply where the connections therein to Québec are present, as provided under Article 3089 CCQ. Additionally, in an oft-cited Québec appeal court decision, H.O. v C.B., Judge Brossard went beyond the characterization of the family patrimony as an ‘effect of marriage’, stating in obiter dicta that all effects, rights and obligations resulting from the sole effect of marriage independently of a matrimonial regime are ‘effects of marriage’.20 In Québec, these include the family patrimony and compensatory allowance. Foreign law may have similar rules that apply irrespective of the law governing the matrimonial property regime (for instance, equitable remedies). However, for these matters to be characterized as effects of marriage, they must also be imperative and be applicable irrespective of the law governing the matrimonial property regime. The characterization of these rights as effects of marriage would exclude the application of the equitable distribution rules under a foreign law as effects of marriage since they are not usually imperative. As such, these rules would be applicable qua regime. Of course, if the Québec courts had characterized the family patrimony as a matter of matrimonial property regime rather than as an effect of marriage, two consequences would have followed. First, the equitable distribution rules, whether imperative or not, would have applied qua ‘regime’, and secondly, this approach would have eliminated the problem of dynamic conflicts (conflits mobiles). With respect to dynamic conflicts, where the parties have changed their common domicile since the date of their marriage and Québec is either the last domicile or the last habitual residence of the spouses, there may be imperative patrimonial effects under the laws of each successive domicile. Different solutions to this dynamic conflict are possible: immutability (application of the law of domicile at the time of marriage), mutability (the law of last domicile), and partial mutability (the law of the first domicile until the change of domicile, and for the following period, the law of their new domicile). The latter approach is the one which best respects the intentions of the parties. In this case, for each of the corresponding periods, liquidation of the imperative ‘patrimonial effects’ takes place according to different principles. Trying to ensure a cohesive solution is a complex operation, but one which flows necessarily from this approach! In addition, where the family patrimony applies, it is still an open question as to whether or not the assets forming part of the family patrimony should be limited to those acquired from the time the spouses established their domicile in Québec, or whether they should include family patrimony assets acquired while they were domiciled in another jurisdiction. In my opinion, the only assets that should be included are those acquired from the time the parties became domiciled in Québec. An additional caveat must be made here. Where the law governing the matrimonial property regime is that of a common law jurisdiction that applies the doctrine of equitable distribution and Québec was the last domicile of the spouses, this may result in a partition of the same assets under different laws: family patrimony under Québec law and equitable distribution under foreign law governing the matrimonial property regime (redividing what has been already divided). Another approach, stemming from the decision rendered by Judge Marie-Christine Laberge in J.S.H. v B.B.F.,21 consists of a cumulative application of the family patrimony rules as effects of marriage (if Québec law applies under Article 3089 CCQ) and the law governing the matrimonial property regime including the equitable distribution rules relating to the remaining assets. This combined approach, which mirrors that used in domestic law, is the preferred solution of practitioners primarily because it avoids, in part, the dynamic conflict as to successive laws governing the ‘effects of marriage’ upon a change of domicile (although the narrower problem of which assets are included remains). It should come as no surprise that the best solution is that the law governing the matrimonial property regime should govern the rights of partition or division of all property, subject to the exception of public order. Furthermore, one should not overlook the recommendations made in 2015 by Québec’s committee on the reform of family law, which proposed replacing the current regime, partnership of acquests, with the family patrimony and allowing for its exclusion in domestic situations as well as logical characterization as a matrimonial property regime under private international law.22 Matrimonial property law meets trust law Determining property of a spouse for the purpose of property division under the law governing matrimonial property regimes may involve the question as to whether a beneficial interest of a spouse in a trust—be it contingent, eventual, vested, or discretionary—is to be included as property owned by the spouse. In the absence of any all-inclusive definition under the law governing the matrimonial property regime, the law governing the trust should determine whether the spouse having a beneficial interest in the trust has ‘property rights’. Assuming a trust is valid under the law applicable thereto, and another law governing the matrimonial property regime of the spouses provides that all property rights are subject to division; the law governing the trust should determine whether the spouse who has a beneficial interest in a trust has ‘property rights’. There does not appear, as yet, to be any specific case law on this point in Québec. An Ontario case, however, is worthy of mention. In Ludmer v Ludmer,23 the court had to determine whether the interest of the spouse in a trust was a proprietary interest, subject to equalization in a divorce before an Ontario court between the son and his wife under the Family Law Act. The court had no hesitation concluding that the validity of the trust was governed by Québec law, which applied to determine the question whether or not the son’s beneficial interest in the trust property constituted property subject to equalization under the Family Law Act. On the basis of the uncontested expert opinion filed by the author, it was accepted that under Québec law, the beneficiaries have no real rights in the trust property. As such, the court held that the beneficial rights of the son were not to be included as property of a spouse for the purpose of equalization under the Family Law Act. These rights are personal in nature and may be exercised only against the trustee although their rights are beyond those of ordinary creditors.24 I do not think, however, one can conclude that this issue will always be governed by the law applicable to the trust. A law governing the division or equalization of family property, or any property, could either exclude property held in a trust25 or include any interest—personal or real—for the purpose of partition of assets, notwithstanding any law to the contrary. Matrimonial property law meets succession law The large scope given to the law governing successions under Québec private international law has further reduced the role of the law governing matrimonial property regimes. Two pervasive problems continue to be problematic in Québec, the law governing the ‘double dip’ of the surviving spouse and the increase of the surviving spouse’s share under the German Civil Code. Although rare, this situation has arisen several times in the course of the author’s practice. The ‘double dip’ Under certain laws, a surviving spouse may cumulate his or her rights under the matrimonial property regime previously existing along with rights under the succession of the predeceased spouse. This is sometimes referred to as a ‘double dip’. Under the laws of most common law provinces and certain civil law jurisdictions, however, the surviving spouse must opt between the two sets of rights (eg section 38 of The Family Property Act of Manitoba and section 6 of Ontario’s Family Law Act).26 Where the matrimonial property regime is governed by a foreign substantive law that prohibits the double dip (eg Ontario) and the law governing succession allows the surviving spouse to cumulate such rights (eg Québec), is it a question of matrimonial property regime or of succession? In my opinion, the question is governed by the law of succession because the matter at issue is more closely connected to the right to inherit. The near double dip under the German Civil Code The German Civil Code provisions governing the matrimonial property regime of spouses provide for an equalization of accrued gains of the spouses determined as of the date of the dissolution of the regime. Section 1371(1) provides for the increase of the share of the surviving spouse by one quarter of his or her rights under the succession. It states: If the property regime is ended by the death of a spouse, the equalisation of the accrued gains is effected by the share of the inheritance on intestacy of the surviving spouse being increased by one quarter of the inheritance; it is irrelevant here whether the spouses in the individual case have made accrued gains.27 Overruling recent case law in Germany and doctrine,28 a recent decision of the Court of Justice of the European Union issued on 1 March 2018 held that the right to obtain an increased share under section 1371(1) is a matter of succession. In my opinion, the same solution should apply under Québec private international law. Conclusion As mentioned at the outset, parties navigating the division of assets upon breakdown of marriage will likely face a number of additional problems if their circumstances trigger the application of private international law rules. The goal of this article was to present and explain some of the more pervasive of these problems, and offer opinions on their resolution. Included in this examination were important problems arising from the application and enforcement of common law equitable distribution regimes by Québec courts, as well as reciprocal enforcement of foreign marriage contracts in civil and common law jurisdictions. Also examined were important issues relating to the enforcement of foreign common law prenuptial agreements and foreign religious marriage contracts in Québec. Problems arising in the context of the characterization of the Québec family patrimony and analogous institutions under foreign laws were considered. Additionally, certain controversies concerning the scope of the applicable law governing matrimonial property regimes in the context of successions and trusts were explored. It is hoped that through identification of problems such as these, and the awareness of various solutions, practitioners may find helpful tools for aiding clients as they face the formidable challenges of dividing assets upon the breakdown of marriage from within the context of private international law. Dr Jeffrey Talpis is a Full Professor, notary, arbitrator, attorney, mediator, and noted authority in the field of private international law. He has published over 175 articles and books on nearly all topics thereto, notably relating to successions, trusts, cross-border civil, and commercial litigation, and the avoidance of legal disputes. E-mail: jeffrey.talpis@umontreal.ca Footnotes 1. Certain parts of this discussion are borrowed from J Talpis, ‘Matrimonial Property Regimes in Quebec Private International Law: Where Are We Now?’ (2003) 63(2) R du B 181; J Talpis, ‘La distribution équitable des biens des époux en droit international privé’ in Mélanges en l’honneur de Mariel Revillard (Éditions Défrenois 2007) 279. 2. Family Law Act RSO 1990, c F-3. See also Family Law Act SBC 2011, c 25, ss 81–104 (Province of British Columbia); Matrimonial Property Act RSA 2000, c M-8, ss 3–19 (Province of Alberta); The Family Property Act CCSM 2002, c F25, ss 13 and 14 (Province of Manitoba). 3. In this article, I will generally use the more internationally accepted expression, ‘matrimonial property regime’, rather than the traditional civil law expression, ‘matrimonial regime’. 4. SQ 1991, c 64. 5. art 422 CCQ. 6. See also Family Law Act of British Columbia (n 2), s 105(2). 7. See also J Talpis and J-G Castel, ‘Le Code Civil du Québec: Interprétation des règles du droit international privé’ in Réforme du Code Civil, vol 3 (Presses de l’Université Laval, Sainte-Foy, Québec, Canada 1993) 801, 887; H Al-Dabbagh, ‘Regimes Matrimoniaux’ in JurisClasseur Québec, collection ‘Droit civil', Droit international privé, topic 34 (le Barreau du Quebec et la Chambre des notaires du Québec 2015) 16–17. A contrary view was given in Droit de la famille-131003, 2013 QCCS 1699 (CanLII). 8. s 15 states: ‘The property rights of spouses arising out of the martial relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario’ (see n 2). See also s 10.7 of the Family Law Act of the Province of British Columbia (n 2). 9. See J Talpis, L’accommodement raisonnable en droit international privé québécois (Éditions Thémis 2009) 27–34 and authorities cited therein. See also Al-Dabbagh (n 7) 12–14. 10. This is an abbreviated name, in light of the fact that the regulation also covers the topics of jurisdiction and recognition of foreign decisions. EU 2016/1103, not yet in force. 11. W Prosser, ‘Interstate Publication’ (1953) 51 Mich L Rev 959, 971. 12. See, for example, s 2(1) of The Family Property Act of the Province of Manitoba (n 2) and s 3(1) of the Province of Alberta’s Matrimonial Property Act (n 2). 13. However, see Topala v Burrogano (2013) QCCS 1068 (CanLII). 14. For example, under s 5(2) of Ontario’s Family Law Act, only the surviving spouse is entitled to claim an equalization (n 2). 15. Topala (n 13). 16. J.L.P. v D.E.M. [1985] RDJ 247 (QC CA), known also as Palmer v Mulligan. 17. See doctrine and cases in G Goldstein, Droit international privé, vol. 1 - Conflits de lois: dispositions générales et spécifiques (Art. 3076 à 3133 C.c.Q.) (Éditions Yvon Blais 2011) 166ff. 18. E Caparros, ‘Le patrimoine familiale Québécois: une qualification difficile’ in D Breillat and P Couvrat (eds), Droit civil, procédure linguistique juridique, Écrits en hommage à Gérard Cornu (Presses Universitaires de France 1994) 51; E Caparros, ‘La nature juridique commune patrimoine familial et la société d’acquêts’ (1999) 30(1) RGD 1; Talpis (n 1) 300; J Talpis, ‘Champ d’application international des règles sur le patrimoine familial’ in Barreau du Québec, Service de la Formation Permanente (ed), Le partage du patrimoine familial et ses conséquences juridiques (Éditions Yvan Blais 1990) 119; J Talpis, ‘Quelques réflexions sur le champ d’application international de la loi favorisant l’égalité économique des époux’ (1989) 2 CP du N 135, 157. 19. Approvingly, G Goldstein, ‘Chronique de droit international privé canadien’ (2010) 4 JDI 1281. 20. [2001] RDF 692 (QC CA), para 72. 21. (2001) CanLII 25570 (QC CS). 22. Comité consultatif sur le droit de la famille (A Roy, chairman), Pour un droit de la famille adapté aux nouvelles réalités conjugales et familiales (Éditions Thémis 2015). 23. (2014) ONCA 827 (Ontario CA), upholding the order of Justice Michael A Penny, Superior Court of Justice made on 11 February 2013, reported at 2013 ONSC 784 except for spousal support. 24. See M Piccini Roy, ‘Discretionary Trusts: Civil Law Perspectives’ (2003) 51(4) Can Tax J 1647. 25. As in The Family Property Act of Manitoba (n 2), s 7(1). 26. See n 2. 27. German Civil Code—BGB, English version published online by the German Federal Ministry of Justice and Consumer Protection in cooperation with juris GmbH <https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.pdf> accessed 1 October 2013. 28. 13 May 2015, Oberlandesgericht Frankfurt am Main. © The Author(s) (2019). Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
TI - Pervasive problems in the division of assets on the breakdown of marriage under Québec private international law
JF - Trusts & Trustees
DO - 10.1093/tandt/ttz002
DA - 2019-02-01
UR - https://www.deepdyve.com/lp/oxford-university-press/pervasive-problems-in-the-division-of-assets-on-the-breakdown-of-v57tAT8oZo
SP - 160
VL - 25
IS - 1
DP - DeepDyve
ER -