Matrimonial Property Entitlements and the
Quebec Conflicts of Law
Up until 1970 a woman who married in England had little to
hope for in an English court when her marriage ended in nullity
or divorce, and she sought a specific share in the assets which her
husband had acquired in his own name, before or during the
marriage. It did not matter that on breakdown of the marriage the
wife, or the wife together with the children, would be better placed
if specific assets, such as house, furniture and car, were put in her
name for her to continue using as her own.
Prior to that year, the English court had power to award periodic
sums for maintenance or a lump sum in lieu,’ but that was all. It
did have power to vary property settlements that had been made
on the occasion of the marriage by one of the parties, both parties,
or others for the parties. 2 But few young couples have very much
property at all when they enter upon marriage today, and even
fewer will have parents or relatives who are able to settle property
upon them.
It could therefore be said that English law did little to soften the
force of the status the parties acquired under that law on entering
marriage, namely, that they are separate as to property. Even the
grant of periodic sums might prove to give the wife nothing more
than a claim against a defaulting husband, and he for his part might
“skip” from English shores if the wife pressed her claims too assi-
duously. When the law was amended after the War 3 to permit a
lump sum in lieu, a major step forward was taken, but it was a
cash settlement, and the husband might well have to realise or
mortgage assets in order to raise the money. The wife might have
been better provided for if she had been given not cash, but the
home together with the furniture or the car. Less disruption would
be caused to already unhappy people, including the often hurt and
bewildered minor children of the marriage.
In 1970, however, the Matrimonial Proceedings and Property Act4
of that year gave extensive discretionary jurisdiction to the court, so
‘Matrimonial Causes Act, 1950, 14-15 Geo.VI, c.25, s.19 (U.K.).
2 Ibid., ss.24 and 25.
3 The Matrimonial Causes Act, 1937, 1 Edw.VIII & 1 Geo.VI, c.57, s.16 as am.
4 Matrimonial Proceedings and Property Act, 1970, c.45 (U.K.).
by Matrimonial Causes Act, 1950, ibid.
McGILL LAW JOURNAL
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that on the occasion of’its issuing a decree of nullity, judicial separa-
tion, or divorce, the court might order a really effective and tailor-
made property arrangement. It was empowered to order the transfer
of assets from one party to the other, whether the assets in question
had been acquired by the party in his or her own name, or require
the sale of assets so that one party might be provided for out of the
proceeds. The object of this legislation, recommended by the English
Law Commission, was that the court might look to the total assets
owned jointly or singly by the parties; in this way adequate provi-
sion might be made for the party in greater economic need and the
dependent children of the marriage. The court was expressly re-
quired by the Act to consider such factors as, for instance, each
party’s private income, the needs and obligations of both parties,
the standard of living to which during the marriage each had been
accustomed, ability because of age or health to acquire employment,
and contribution of each to the welfare of the family.
In other words, English law retains for married couples the
status that they are separate as to property, but it gives a very wide
jurisdiction to the courts to allocate and arrange the parties’ several
assets, so that, on the ending of the marriage or on judicial separa-
tion, as fair and equitable a property arrangement as possible is
made. The provisions of the 1970 Act just described are now in-
corporated in the Matrimonial Causes Act, 1973,” which completely
overhauled the law by introducing the right to termination of
marriage on breakdown, instead of on fault. It is also important to
note that all parties, who have obtained a decree of divorce, nullity,
or judicial separation subsequent to the 1970 Act, are entitled to the
benefit of the court’s discretion, whenever those parties were
married
Other common law jurisdictions have moved along the same lines
in attempting to solve this thorny problem of the parties’ several
property entitlements on the breakdown of the marriage. In 1963
New Zealand adopted the approach of conferring discretionary
powers upon the courts,’ and within common law Canada a dis-
cretionary system has been adopted in British Columbia,9 Saskat-
5 Ibid., s.5.
“Matrimonial Causes Act, 1973, c.18, s.25 (U.K.).
“The discretion can also be exercised when the decree was made before
the enactment, but the property arrangements between the parties come
before the courts after the enactment; ibid., s.24.
sMatrimonial Property Act, New Zealand Statutes, 1963, No.72.
9 Family Relations Act, S.B.C. 1972, c.20. See further, D.W.M. Waters, Law of
Trusts in Canada (1974), 911.
19761
COMMENTS – COMMENTAIRES
chewan,”‘ and the Northwest Territories.” In terms of the future,
the Alberta law reform institute has recommended a role for judicial
discretion, albeit of a limited nature, 2 and further developments of
this kind are not unlikely. Indeed, this is an area of law in Canadian
common law jurisdictions where considerable changes are immi-
nent, and it may well be that when all the expected legislation is
finally enacted, common law Canada will be found to have given a
significant place to the judicial discretion. 3
The alternative currently being canvassed is a deferred com-
munity of acquests very much like the Quebec regime,14 but this
proposal is proving to be controversial. 5 The difficulty is that as the
history of the common law is associated with husband and wife
each having his or her separate property, so is it endemic to the
common law tradition to resort to judicial discretion when there are
decisions to be made which involve a range of diverse considerations.
Common lawyers instinctively dislike formulaic methods of solving
problems which have that character. This is thought to be due in
large part to the fact that by tradition, received from England,
judges are appointed from the Bar, where they were known by the
Bar and daily made the kind of decisions which the judicial dis-
cretion involves. Perhaps it is also due to the common lawyers’ long
familiarity with the separate jurisdiction of Equity.
Whatever the explanation, however, the statutory adoption of
judicial discretion in England and other common law jurisdictions
has brought about an entirely new situation. This has certain results.
Suppose a couple marry in England or New Zealand –
to take but
two jurisdictions which have chosen judicial discretion as the
manner in which to solve the proprietary problem –
and they then
10 Married Women’s Property Act, R.S.S. 1965, c.340 as am. by S.S. 1974-75, c.29.
The Saskatchewan Law Reform Commission has now recommended the
statutory extension of this discretion, and the co-existence with this judicial
discretion of a statutory co-ownership of matrimonial homes: Report to the
Attorney-General of Saskatchewan, May, 1976, 5 et seq.
11 Matrimonial Property Ordinance, N.W.T. 1974, 3d Sess., c.3.
12The University of Alberta, Institute of Law Research and Reform,
Report No.18, Matrimonial Property, August 1975, 16.
l3 The law in England, New Zealand, and Canada on this topic is examined
in detail by Professor Peter M. Jacobson in his article, Recent Proposals for
Reform of Family Law (1975) 21 McGillL.J. 556.
14 Arts.1266c-1267d C.C.
15 See, e.g., H.R. Hahlo, A Note on Deferred Community of Gains: The
Theory and the Practice (1975) 21 McGill L.J. 589, and W.D. Goodman,Q.C.,
A Critique of Family Property Reform (1974) 1 Estates and Trusts Quarterly
315.
McGILL LAW JOURNAL
(Vol. 22
come to Quebec, take up residence here, and it is here that they
petition for divorce, separation, or nullity. It is surely not enough
for a Quebec court to ask whether by the law of their place of do-
micile at the time of marriage they became separate as to property,
and to determine the rights of the parties thereafter on that basis,
ignoring the discretion which is conferred upon, and always exercised
by, the English and New Zealand courts.
A civilian readily thinks in terms of “rights” acquired on entering
marriage. Subject to the right of the parties expressly to change
their regime during marriage, whatever “rights” the parties acquire
on marriage determine their position if and when the marriage later
breaks down. “Rights” do not include the ability of either party to
the marriage to ask a court in its discretion, on the award of a
decree, to make an appropriate property arrangement between the
parties. Judicial discretion is necessarily exercised when the parties
have secured a decree in what may be called the discretion juris-
diction; only then for the first time, if at all, will each party acquire
specific assets hitherto belonging to the other. It follows that a
civilian would not even be impressed with the argument that parties
were married in the discretion jurisdiction at a time when the courts
of that jurisdiction already possessed the statutory authority to
exercise discretion. He would conceive that to be as irrelevant as
the fact that parties were married before the enactment of the
discretion-conferring legislation. In both situations, he would ob-
serve, neither party was entitled to specific assets or a specific
quantum of assets at the moment of the decree of nullity, judicial
separation, or divorce being awarded.
The conflict of laws problem arising from the marriage of
parties in one jurisdiction and the award of a decree in another is
therefore set in a new light. If the domicile of the parties at the
time of their marriage solves the property entitlement of the parties
by providing that they shall be “separate as to property”, but have
the statutory right to seek the exercise of an extensive judicial dis-
cretion to allocate assets when the marriage ends, it is a total mis-
representation of that law for another jurisdiction – normally a -civil
law jurisdiction –
to hold simply that they are separate as to pro-
perty. Community of acquests is a deliberate modem attempt to
place the parties in a fair and equitable position; separation as to
property, accompanied by a statutory judicial discretion to allocate
assets between the parties on the termination of marriage, is another.
The second deserves as much respect as the first.
19761
COMMENTS –
COMMENTAIRES
It would seem therefore that if a civil law jurisdiction (and I am
here thinking particularly of Quebec) wishes to apply a meaningful
conflicts principle, it must take into account this right to invoke the
judicial discretion which the common law jurisdiction confers. It
is not enough for a Quebec court to determine that, because it is only
the right to ask a court to make a division or allocation, such a
right is no right at all. Inevitably, it seems to me, the Quebec courts
if they are to do justice to the foreign law in question – must
–
review the notion of what is meant by “rights” which are acquired
by couples when they are married in the foreign jurisdiction. Quebec
may have to see the right of the parties to seek the exercise of a
discretion by the court as a “right” in the same sense as rights
acquired by community of property or a marriage contract. This
involves asking what is the extent of the discretion in the jurisdiction
in question, and the principles upon which those courts are required
to exercise it. The logical outcome is that the Quebec courts will
themselves have to exercise the discretion, when the extent and the
principles of it have been discovered.
Is there anything wrong with this? Or anything particularly
difficult? Persons married in Quebec and then going to live in a
common law jurisdiction will either be within community, partner-
ship of acquests, or have a marriage contract which confers con-
tractual rights upon the husband or wife. They have little or no
need of, or reason to invoke, the judicial discretion of the juris-
diction in which they are living, though the courts there are still
statutorily entitled to exercise that discretion. It is persons marrying
in a common law domicile which confers judicial discretion, and
then coming to live in Quebec, who find themselves faced with a
characterisation of their property relationship which is frankly an
archaic misrepresentation, and which leaves them with what can be
obtained in Quebec on the basis of section 11 of the federal Divorce
Act, 6 which is essentially another maintenance provision. In these
days of the constant movement of people, this can neither be right
nor, I think, justified. It certainly gives no pleasure to a member of
the English Bar to be called as an expert witness on English law in
a Quebec court, and, once the magic words “separate as to property”
have been spoken, to see that law conceived of as if it had made no
advance since 1882.17
3O R.S.C. 1970, c.D-8.
ITIn that year the Married Women’s Property Act, 1882, 45-46 Vict., c.75
(U.K.) was passed, introducing the full concept of separation of property.
McGILL LAW JOURNAL
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It cannot sufficiently be underlined that the spouse who is injured
by this characterisation, normally the wife because all the assets are
in her husband’s name, is put in a near hopeless situation if she is
claiming something more than mere maintenance. She will not be
in community, nor will she have a marriage contract. She cannot
even argue, as could a wife in a common law jurisdiction, that there
was an express or implied agreement between her husband and
herself after the marriage that they would share equally all “family”
assets which they acquired, such as home, furniture, car, and savings.
No Quebec court would listen to such an argument; she acquired no
“right” to these assets on entering marriage. And, even if it can be
afforded financially, it is of no use advising the wife to go to
England to seek her divorce, because –
all the disputed
assets are likely to be in Quebec, and this is going to create obvious
difficulties in the English court.
for a start –
One might say, well, why do not the parties change their regime
to partnership of acquests once they are in Quebec? The answer, I
suppose, is that the average common law spouse coming to Quebec is
not familiar with this institution, and does not realise the mess he
or she is going to be in until the eve of the divorce. Then it is too
late. The last thing the hostile spouse, who has ownership of the
disputed assets, is going to accept is entering community or a
partnership of acquests, even if it is still possible. Nor is it right
to ask of the parties, while they are yet happily married, the foresight
as well as the wisdom of Solomon. Life is not like that, and in my
view the law should respond to the difficulties in which the property-
less spouse finds himself or herself. What is needed is a new
characterisation by Quebec law of foreign matrimonial “regimes”.
Donovan Waters*
* Gale Professor of Law, McGill University; of Lincoln’s Inn, England,
Barrister-at-Law.
