The Partnership of Acquests as the Proposed Legal
Matrimonial Property Regime of the Province of Quebec
The Sub-Committee appointed by the Quebec Civil Code Reform
Commission to study the question of matrimonial regimes has recently
submitted its report; 1 amidst a wide variety of recommended changes,
the principal policy decision made by the Committee concerns the
(SociWt6 des Acqu6ts) as
selection of the Partnership of Acquests
the proposed legal regime of the province.2
Although the basic principle of matrimonial property relations,
admitted by all of the major jurisdictions in the western world, is
the freedom which the consorts have to choose the regime best suited
to their needs,3 the legal regime, nevertheless, has an important role
to play. The Legislator should take care to set up a regime which will
do more than operate as a mere receptacle for those ignorant or
negligent few who fail to choose another system by ante-nuptial
contract; it must be a regime which will be accepted by the majority
of the population, who are people of average means and circumstances.
Those individuals in exceptional categories where, for example, the
wife exercises a profession, will no doubt draft a marriage contract
which suits their particular economic status. The legal regime, if
it is to appeal to average persons, should be practical, easy to under-
stand and in accordance with the basic customs of the jurisdiction.
Le Regime lgal n’est pas une construction plus ou moins abstraite ou
il faut tenir
th~orique qu’on puisse implanter subitement dans un pays –
compte des moeurs, des traditions, des habitudes, de
The Matrimonial Regimes Committee found little difficulty in
deciding that the existing legal regime, the Community of Moveables
and Acquests,5 was no longer suitable., Separation of Property, often
cited as the obvious choice to become Quebec’s new legal regime on
‘histoire.4
‘Report of
the Matrimonial Regimes Committee, Mimeographed Text,
(Montreal, 1.966). Hereinafter referred to as Report.
2 For an excellent analysis of the new regime by the Chairman of the
Committee, see Comtois, Pourquoi la sociWt4 d’acqu6ts?, (1967), 27 R. du B. 602.
3 See, however, Caparros and Morisset, R6flexions sur le rapport du Comit
des regimes matrimoniaux, (1966-67), 8 C. de D. 143 at pp. 178 et seq., where
the authors propose certain basic rules as imperative elements in all matrimonial
property regimes.
4M. Lyon-Caen in Travaux de la Commission de Rdforme du Code Civil,
1948-49, (Paris, 1949), p. 172.
5As set out in 1270-1383 C.C.
0 Report, p. 4.
McGILL LAW JOURNAL
[Vol. 14
the grounds that it seems to be favoured by most consorts,7 was also
rejected.”
The Committee chose instead a hybrid system of deferred com-
munity in which certain property is owned separately as long as the
consorts remain married, but which falls into the community at the
termination of the marriage. This system seeks to combine the
principal advantage of the separatist regime –
namely, the respect
granted to the equality and independence of the consorts – with some
participation in the economic results of marriage upon dissolution.
The basic principles of this regime are not new; although usually
regarded as a product of the twentieth century, it has been a con-
ventional regime in the Austrian Civil Code since 1811, 9 and was
incorporated as the legal regime in Costa Rica in 1888.10 More recent
examples are the legal regimes in force in the Scandinavian countries
since the 1920’s, the German legal regime of Zugewinngemeinschaft
and the French Participation aux Acqu6ts.
The particular features of this Partnership of Acquests 11 are set
out in Chapter Two of the Draft Articles of the Report under the
headings (a) What Things compose the Partnership of Acquests,
(b) The administration of the Property and the Liability for Debts,
and (c) The Dissolution and Liquidation of the Regime.
II
(a) What Things compose the Partnership of Acquests
What is to be the extent of the sharing of property between
consorts upon dissolution of the marriage? According to the original
draft, the acquests to be divided were to include only the proceeds of
the work of the consorts, and not that of their private property, for
it seemed in keeping with the psychology of Quebec consorts that they
share what they have owned in common but that they retain as their
own what came from their work previous to marriage, and property coming
from their families. 12
7 See, for example, The Report of the General Council of the Bar of the
Province of Quebec, (1967), 27 R. du B. 62; and briefs submitted to the
Committee by the Ligue des droits de l’homme and the Fidration des femmes
du Quibec outlined in Comtois, loc. cit., at pp. 607-608.
s Report, p. 6.
9Imre Zaitay, Quelques projets de rdforme du regime matrimonial legal
en France, Belgique et Allemagne, [1955] Rev. Int. Dr. Comp. 572.
10 Ibid.
11 The term “Soci~t6 d’acquets” or partnership of acquests is also used by
the French notariat to describe the regime which arises from the insertion of a
clause of deferred division of acquests in a marriage contract stipulating
separation of property.
12 Report, p. 30.
No. 1]
NOTES
The Committee has recently decided, however, to enlarge the
scope of the assets, so as to allow the consorts to share in all savings
accumulated during marriage regardless of their source. 13 This change
is to be welcomed for a number of reasons. Firstly, if the acquests
consisted only of the savings provided by earned income of the spouses,
the protection afforded the wife at the dissolution of the marriage
would be inadequate to offset effectively the principle of freedom
of willing. Secondly, the distinction between the savings from the
revenues of personal property, and those from the earned income
would have necessitated the keeping of detailed accounts between
the consorts, which is not only impractical, but also contrary to the
unity and spirit of the marriage. Finally, the expanded scope of
these acquests does not in any way diminish the control of the con-
sorts over their personal property, since it is only the proceeds of
the fruits and revenues therefrom (i.e. what is not spent) which
become part of the acquests.
b) The Administration of the Property and the Liability for Debts.
Each consort has the complete administration and enjoyment of
all his property, whether it be private or acquests,14 and this property
is liable for all his debts.’5
With regard to each consort’s right to dispose freely of his proper-
ty, however, a problem arises; for, in order to guarantee that some-
thing will remain of the acquests to be divided upon dissolution of
the marriage, some restrictions upon the independence of the consorts
must be imposed.
The Legislator is here faced with the task of balancing two
irreconcilable principles. On the one hand, more importance may be
attached to the independence of the consorts, as in the German legal
regime of 1958, where only the alienation of the entire patrimony
or household objects without the consent of the other consort is
prohibited.’ 6 Other jurisdictions, such as Sweden, on the other hand,
have adopted strict rules requiring the other spouse’s consent to a
disposition of immoveable property, even if it be by onerous title.”‘
The Committee restricted only the gratuitous disposition of
acquests, for which the concurrence of the other consort must be
obtained.’ 8 In principle, this decision appears sound. It is obvious
13 Comtois, loc. cit., at p. 614.
14 Draft art. 1278.
‘5 Draft art. 1279.
10 J. Leyser, Equality of the Spouses under the New German Law, (1958),
7 Am. J. Comp. L. 276 at p. 280.
17 Zajtay, loc. cit., p. 576.
18 Draft art. 1278.
McGILL LAW JOURNAL
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that in a jurisdiction such as Quebec, where the principle of freedom
of willing prevails, some special provision must protect the wife
against the possibility of disinheritance. Then, too, if the Committee
had gone further and imposed restrictions upon alienation by onerous
title, complexity and uncertainty would have resulted –
especially
in the consort’s relations with third parties. The wife should be
protected against the possibility of the husband giving away his
acquests, but should not be allowed to intervene merely in the event
of a bad bargain.
Two criticisms of the provision may be suggested:
Firstly, one class of property, the family house and furniture, is
fundamentally different from other property for it, above all, rep-
resents the de facto community of interests during the marriage.
It may be argued, therefore, that the Committee could have better
protected the interests of the family by requiring common consent
before items in this special category be alienated.
Secondly, an expansion of the scope of this gratuitous disposition
provision might considerably simplify the regime. During the mar-
riage, as a general rule each consort has complete control over his
own patrimony; it is often difficult to determine, however, what
property in fact is in that patrimony because of the inevitable
confusion of property which results from the community of interests.
To this difficulty is added the necessity of distinguishing which
property in that patrimony, once its contents have been defined, is
destined to become an acquest upon dissolution and which is to remain
a propre; this situation arises as a result of Draft Article 1278, which
provides that common consent is required only for the gratuitous
disposition of acquests. This seems to be an acceptance by the Com-
mittee, albeit to a lesser degree, of the very principle with which
they found fault in the French Renoult Draft:
Quite rightly, objections were especially made … to the troublesome necessity
of distinguishing private property and acquests during the whole of the
course of the marriage. 19
This deficiency may be overcome by amending Draft Article 1278
to read “any of his property” instead of “acquests”, although admit-
tedly, this would have the effect of diminishing the power of each
consort over his own propres.
c) The Dissolution and Liquidation of the Regime
When the marriage is dissolved, the liquidation of the regime
takes place according to the rules set down in Articles 1282 and
19Report, pp. 9-10.
No. 1]
NOTES
following of the Draft. The high degree of independence and control
which each spouse exercises over his property forced the Committee
to recommend the right of option of participation in the common
portion of the other’s property.20 Double renunciation makes the
regime one of separation of property. In the event of a unilateral
renunciation, there is only partition in the common mass of the
renouncing consort’s property; the patrimony of the accepting con-
sort remains unchanged. The partition into propres and acquests is
facilitated by a presumption in favour of acquests.21 Adjustments
of compensation are carried out,2 2 and then the mass of acquests
is divided in half between the consorts. This partition may be made
in value at the choice of the one whose acquests are partitioned.2 3
The consorts are liable jointly and severally to creditors for
unpaid debts which are liabilities of the acquests.2 4
I
Taken as a whole, the Partnership of Acquests is an important
addition to the matrimonial property law of Quebec, but only, it is
submitted, as a conventional regime. For a number of reasons, it
would fail to provide a satisfactory legal regime for this Province.
It is, first of all, too complex. A legal regime exists for the great
mass of the people, who must be able to understand what will, in
effect, happen to their property. In this regard, complete separation
of property is ideal, but even consorts married in community find
little difficulty in visualizing a third entity representing the interests
of the mrnage as a-whole, as opposed to their own individual propres.
The Partnership of Acquests, however, involves an abstract concept
of retroactivity which is difficult for the layman to comprehend;
the partition which occurs on dissolution operates on the property
which the consort regarded as his own throughout the duration of
the marriage. The philosophy of the regime is more than a combi-
nation of the basic principles of community and separation –
it
represents a new concept which is presently unknown and unfamiliar
to Quebec consorts.
Secondly, it is questionable whether the regime of Partnership
of Acquests really provides adequate protection for the wife at the
dissolution of the marriage. Unless she keeps accurate records, the
wife may find it difficult to prove the ownership of her own propres,
20 Draft art. 1283.
21 Draft art. 1290.
22 Draft art. 1291.
23 Draft art. 1292.
24 Draft art. 1293.
McGILL LAW JOURNAL
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which will be subject to partition as part of the acquests. As regards
the scope of the acquests themselves, even though it has now been
enlarged to include savings from the consorts’ private property, it
still seems too limited and too dependent upon the good will of the
husband to fully protect the wife. The possibility that in such a
system the wife might well be left with no savings in which to
share was realized in Germany, where the law grants the surviving
consort the option of demanding one-quarter of the predeceased’s
estate instead of sharing in the gains.25
Thirdly, the Partnership of Acquests is essentially a separatist
regime. No community exists during the marriage and even upon
the dissolution, the so-called sharing in the acquisitions amounts to
little more than a claim upon the other spouse for equalization of
the profits produced by the marriage. The population of Quebec, as
a whole, it is submitted, is not ready to accept a quasi-separatist
system as the legal regime of the Province. The extensive popularity
which separation of property now enjoys seems to be analogous to
a victory by default,26 and the Legislator should be extremely cau-
tious in establishing a variation of this system as the legal regime.
In the words of Dean Ripert:
les pays qui ne connaissent pas la s6paration de biens comme r~gime legal,
hdsiteront toujours h d~truire chez eux des r~gles traditionnelles qu’ils
consid~rent comme conformes A la nature mime du mariage, pour adopter
un regime de separation de biens qui est un rdgime d’int6r6ts go~stes.2 7
Despite the economic and sociological changes which have occurred
in the province during the last fifty years, some basic concepts
and values have remained. One of these is the French-Canadian
attitude towards the family and marriage, which still differs funda-
mentally from that of other North Americans. The essential unity
of the m6nage persists, notwithstanding the widespread demand for
equality of the sexes and the undermining of family ties by the new
urban, industrial society.
Si
‘on se place… sur le terrain social, la famille qudbecoise demeure au
fond ce qu’elle n’a jamais cess6 d’6tre, malgr6 certains bouleversements
apparents… Malgr6 une apparente amdricanisation de la vie qu~becoise,
malgr6 l’attraction exerce par les grandes villes sur les populations de la
campagne, la famille qudbecoise reste encore en cette seconde moiti6 du
20e si~cle relativement stable et serr~e autour de son chef.2 8
25 Leyser, loc. cit., at p. 281.
20Roger Comtois, Traitd Thdorique eot Pratique do la Communautd do Biens,
(Montrdal, 1964), p. 329.
27 G. Ripert, Le Regime Matrimonial de Droit Commun, (1937), 4 Travaux de
la Semaine Internationale de Droit, p. 8; as quoted in E. Caparros, Antitheses
et Syntheses des Regimes Matrimoniaux, (1965-66), 7 C. de D. 289 at p. 295.
28 Louis Baudouin, Immutabiliti ou Mutabilit6 des Conventions Matrimoniales,
(1954-55), 1 McGill L.J. 259 at p. 270.
No. 1]
NOTES
IV
Which system, then, is best suited to be the legal regime of this
Province? The answer would seem to be Community of Property.
Given the principle of freedom of willing which is part of our
law,29 the fundamental aim of the legal regime should be the ade-
quate protection of the wife upon dissolution of the marriage. In
fact, even if our laws relating to testamentary freedom were amended
to automatically provide a fixed portion for the surviving consort,
a hypothesis which is beyond the scope of this comment, this would
be of no assistance to the large body of individuals who are divorced
or separated. Considerations of independence and equality for the
wife are only of secondary importance, especially in view of the
de facto authority which the husband normally exercises over the
property of the consorts.
If this legal community of property is to become the regime of
the majority, however, it must be amended considerably to bring
it in line with modern developments. This independence of the con-
sorts must be increased by reducing the scope of the community
so that it includes only the acquisitions which accrue to the con-
sorts during marriage, by reason of their industry. Revenues and
fruits from propres would remain as private property, since only in
this way will the wife have complete powers of ownership over what
belongs to her. The content of the community would still be sufficient
to protect the wife, since it would include all earned income, and
not merely the savings thereof. The wife’s participation in the
management of the common property should be increased by requiring
her consent for all important transactions. Finally, and probably
most important of all if this regime is to obtain any sort of public
approval, it must be given a name which does not include the term
“community”; for the use of such a word would involve association
with the existing legal regime, against which Quebec consorts have
very strong psychological feelings. This disapproval stems almost
entirely from its provisions regarding the subjugation of the wife –
a subjugation which this community of acquests, for the most part,
removes.
Such a system no doubt contains many deficiences. Yet no legal
regime may hope to satisfy all of the many conflicting and contra-
dictory needs which the interests of the consorts demand. The Com-
munity of Acquests, it is submitted, is the system which contains
the most advantages for the ordinary Quebec household.
Douglas H. TEES*
29 Art. 831 C.C.
* Executive Editor, McGill Law Journal.
