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36 C. de D. 795 (1995)
Testing the Origins of the Family Patrimony in Everyday Law

handle is hein.journals/lcdd36 and id is 795 raw text is: Testing the Origins of the Family Patrimony in Everyday Law* Nicholas KASIRER** This essay seeks to reevaluate the origins of the family patrimony by challenging the idea that the provisions introduced into the Civil Code of Qu6bec in 1989 amounted to new law. The family patrimony is not simply a statutory trust borrowed maladroitly from Ontario, nor does it reflect a moral postulate that, prior to 1989, had no legal status. It may be argued, in advance of sociological study, that the family patrimony should be understood as reflecting customary norms that were already present in the Quebec legal order at the time of its enactment. Where wealth is accumu- lated by the spouses during the period that marriage is lived as a joint economic endeavour, rules of everyday law may require the sharing of certain property without regard to which of them has formal title thereto. These customary norms, obscured doctrinally by a modern disinclination among jurists to look beyond state-made law and its adjuncts in the regu- lation of married life, are potent sources offamily property law. Once the manner in which everyday law complements the formal law of matrimonial property is made plain, it becomes apparent that the claim to a share of the family patrimony is not, in fact, a break with tradition in Quebec's Civil law offamily property. Le prdsent article vise c resituer les origines du patrimoine familial, en remettant en cause l'opinion selon laquelle les dispositions lMgislatives adopt~es en 1989 expriment du droit nouveau. Si le patrimoine familial n 'estpas simplement la transplantation maladroite d'unefiducie statutaire ontarienne, il n 'est pas non plus le reflet d'un postulat moral quin 'aurait * The author would like to thank John E.C. Brierley, Jean-Maurice Brisson, Daniel Jutras and R.A. Macdonald for their comments as well as participants in the Civil Law Workshop, Faculty of Law, McGill University. ** Associate professor, Faculty of Law & Institute of Comparative Law, McGill University. Les Cahiers de Droit, vol. 36, n' 4, d6cembre 1995, pp. 795-841 (1995) 36 Les Cahiers de Droit 795

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