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“We’re getting divorced — I don’t want my ex to touch my RRSPs.”

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“I’m getting divorced there’s no way my ex is touching my RRSPs.” Here’s how to respond clearly.

Divorce and RRSPs: what the law says about division

When a couple separates, the question of dividing assets quickly becomes a source of stress and tension. One of the most commonly misunderstood points concerns Registered Retirement Savings Plans (RRSPs). Many people believe their RRSPs are “protected” from division because they are in their name or because they were accumulated individually. However, in most cases, this belief is false particularly in the context of a marriage.

1. RRSPs are part of the family patrimony

In Quebec, when two married people get divorced, the Civil Code provides for the division of the *family patrimony*. This patrimony includes several elements: the family residence, the furniture that furnishes it, the vehicles used by the family… and the rights accumulated in retirement plans, including RRSPs.

No matter whose name the RRSP is registered under, if it was accumulated during the marriage, it is generally considered property to be divided equally. This means that one spouse may have to pay the other half of the net value accumulated during the marriage. This principle applies even if only one person contributed to the RRSPs or if the funds came from that person’s personal income.

2. Possible but limited exclusions

There are, however, some important exceptions. For example, contributions made before the marriage can, in some cases, be excluded from the calculation of the family patrimony. But be careful: you must be able to clearly prove the value of your RRSPs at the date of marriage, with precise statements.

In addition, if you signed a marriage contract providing for the separation of property, that does not necessarily exempt you from the division of the family patrimony. The family patrimony is a legal entity separate from the matrimonial regime. Even with a marriage contract stipulating separation of property, RRSPs accumulated during the marriage may still be subject to division.

3. The case of common-law partners

The situation is different for common-law partners, who are not married and therefore not automatically subject to the division of family patrimony, even after a long-term relationship. In this case, each person retains ownership of their own property unless they have signed a contractual agreement (such as a cohabitation agreement).

That said, some partners may attempt to make a claim through an unjust enrichment action or a de facto partnership claim, which can sometimes include part of the assets such as RRSPs.

4. The transfer process is regulated

When a divorce judgment orders the division of RRSPs, the transfers are generally made without tax consequences if they comply with the rules of the Canada Revenue Agency. A direct transfer from one RRSP to another RRSP (or to a Locked-In Retirement Account, depending on the situation) can be done without immediate taxation, provided the proper forms are used and the transfer results from a court judgment or a legally recognized agreement.

Therefore, it’s a mistake to believe that one can “hide” or “protect” an RRSP simply because it’s registered in their own name.

In conclusion

RRSPs, like other assets accumulated during a marriage, are part of the property to be divided. The personal desire to prevent an ex-spouse from “touching” them is not sufficient to exclude them from the legal equation. Understanding these rules allows you to plan your divorce in an informed manner and avoid costly mistakes or unrealistic expectations. It is always recommended to consult a lawyer or notary who specializes in family law to fully understand your rights in your specific situation.

Sources :

  • Éducaloi. “What Is Family Property?”
    https://www.educaloi.qc.ca
  • Government of Québec. “Division of Family Property”
    https://www.quebec.ca/famille-et-soutien-aux-personnes/rupture-separation-divorce/patrimoine-familial
  • Civil Code of Québec, Articles 414 to 432
    https://ccq.lexum.com
  • Revenu Québec. “Division of RRSPs in the Event of a Divorce”
    https://www.revenuquebec.ca
  • Canada Revenue Agency. “Transfers of Property on the Breakdown of a Marriage or Common-Law Partnership” https://www.canada.ca/fr/agence-revenu/services/impot/particuliers/sujets/reer/transfert-biens-rupture.html