De facto spouses and notarial deeds

As de facto spouses enjoy no protection under the Civil Code of Québec in the event of separation and/or death, the law applicable to them is that of common law and/or that of their agreement(s).

This principle is well established in jurisprudence, and in particular by the Court of Appeal, notably since Cadieux v.
Caron, 2004 CanLII 26397 (QC CA), where the judges expressed themselves as follows:

The appellant could easily have imposed on the respondent, in the notarial deed, the obligation to reimburse him half of his down payment or, alternatively, provided for an unequal division of the property;

[20] The deed of purchase confirms a liberality on the part of the appellant and constitutes justification for the enrichment of the respondent;

[21] The trial judge recognized the appellant’s generosity:

Such a gesture fits in well with the gentleman’s generous personality.

[22] The maxim “give and take” applies here.
The appellant cannot, on the one hand, rely on the deed of purchase as the source of his right of ownership and, on the other, attack the respondent’s right of ownership, which he freely granted to her in the same deed, by invoking the theory of unjust enrichment;

In other words, if you are de facto spouses and want to protect a contribution to a property, you need to set out in writing, in the notarial deed at the time of purchase – or failing that, if this could not be done in time, in a joint ownership agreement – the points on which you agree or wish to agree with your partner.

For example, you could plan :

The possibility for each spouse to recover their respective down payments

The possibility for each spouse to recover the capital gains acquired through their respective investments;

The possibility for each spouse to recover contributions / mortgage prepayments from money received by inheritance and/or gift.

The possibility for each spouse to recover contributions / mortgage prepayments from inherited and/or donated money and their added value.

A right of pre-emption, i.e. a mutual obligation to sell in priority to the other spouse rather than a sale to a third party (marketing) (*when children are minors)

The obligation for each to pay the costs relating to the property %-50% or %-60% or in proportion to their respective incomes or in proportion to their respective faculties.

Determining a different 50-50% quota;

One or more mutual liberality clauses in the event of contributions exceeding the quota;

Etc.

Failing this, in the event of separation or sale, the equity in the house will be shared according to the share indicated in the deed, or in the absence of a clear indication in the deed, at 50% each (as provided by article 1015 C.c.Q.).

The act of purchase is an important moment that should prompt you to ask questions and discuss your financial agreement with your partner.
Almost all agreements can be found in the deed or in an undivided agreement.

The important thing is to be well informed about the impact these clauses will have on your situation, and in this respect, nothing beats the sound advice of your lawyer or notary.