Canadian Rules Regarding Residential Immovable in a Divorce


Some marriages don’t work out. Actually, statistics show that most marriages these days are not going to work.  But even when two people agree that they would be better off going their separate ways, the matter of property can make things quite complicated.  And for some couples—particularly those who have been together a long time—they might collected something called “immovable property,” which is not quite so easy to divide evenly.

Immovable Property: a Definition

Any Real Estate lawyer in Montreal will tell you that the term “Immovable property” is any piece of property that can be owned or possessed but cannot be moved without destroying it or altering it.  Basically, the most common type of immovable property would be a house.  It might also be the plot of land upon which that house sits.

It all depends on how you have established ownership.

Settling Property Matters in a Divorce

 In a typical divorce, a couple will decide how they want to divide their belongings.  It does not matter who owned what before the marriage (though it might be considered) because once you sign that marriage certificate everything is considered combined “assets.” This can be larger items like bedroom furniture or smaller items like media (movie and music discs, books, etc.). These items can be divided or can be sold and the money exchanged can be divided.

Immovable property, however, cannot simply be divided.  Generally, this type of asset is sold so that each person can get an even share of its value.  “Residential immovable property” general refers to a family domicile. However, there are other kinds of immovable property. This might include an office or warehouse, machinery or furniture and other belongings that may be too difficult to simply move or divide.

Sales and Capital Gains Associated with Immovable Property

When you sell your home—or piece of immovable property—the money you get is considered to be a “capital gain.”  A Capital gain is additional money you made from selling an item; basically, it is profit.  Anytime you sell something and make a substantial capital gain in the process, you must also pay the appropriate taxes on it.  So remember that when you sell immovable property to divide its value for a divorce, you will have to divide the after-tax (net) amount.