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The Matrimonial Property Act governs the division of assets on marriage breakdown. This Act applies to all married spouses and domestic partners, who have registered the Partnership. It does not apply to common-law spouses who have not married or registered their domestic partnership. Each spouse is entitled to request an equal division of the matrimonial assets. The matrimonial assets are the Matrimonial Home and all property that one or both spouses acquired during the marriage or brought into the marriage. Most assets are presumed to be matrimonial and divided equally.

Assets That are Not Matrimonial Property

Some assets are not matrimonial property, and therefore, not subject to division, but the onus is on the spouse to show that the asset is an excluded asset. These assets are:

  1. Gifts, inheritances, trusts or settlements that one spouse receives from a 3rd party. These funds must not have been used or be intended for future use that benefits both spouses or the children.
  2. An award or settlement of damages in court.
  3. Insurance policy proceeds that are payable to one spouse.
  4. Reasonable personal effects.
  5. Business assets that are held for production of income or profit.  It is possible to be compensated for direct and significant contributions to the business assets.
  6. Property specifically excluded under marriage contract or separation agreement.
  7. Property acquired after separation unless cohabitation is resumed.

Unequal Divisions of Assets

In rare circumstances there may be an unequal division of the matrimonial assets. The court will consider the following factors:

  1. The unreasonable impoverishment by either spouse of the matrimonial assets.
  2. The amount of the debts and liabilities of each spouse and the circumstances in which they were incurred.
  3. Marriage contract or separation agreement.
  4. Length and time of cohabitation.
  5. Date and manner of acquisition of the assets.
  6. Effect of the assumption of housekeeping, child care or other domestic responsibilities on the ability of the other spouse to acquire, manage, maintain, operate or improve a business asset.
  7. Contribution to education and career potential of the other spouse.
  8. The needs of child not yet at the age of majority.
  9. Contribution to the marriage and welfare of family, including any contribution as homemaker or parent.
  10. Whether the value of the assets appreciated significantly during the marriage.
  11. Proceeds of an insurance policy or award of damages in tort intended to compensate for physical injuries or provide for future maintenance of the injured spouse.
  12. Value of pension benefit that due to the separation, either party will lose the chance of acquiring.
  13. Taxation consequences.

Matrimonial Home

The Matrimonial Home is the dwelling and real property occupied by the spouses as their family residence. One or both spouses must own the home and not merely rent it. There may be more than one. Each spouse has an equal right to possession of the Matrimonial Home. But the court may give exclusive possession to one spouse.

Other Items of Property

All assets are valued as the cash-in-hand value of the assets, even if the assets are not going to be sold. So, for example, the matrimonial home is often valued by deducting the mortgage, real estate commission, legal fees and disbursements. Some assets are typically valued as of the date of separation; for example, cars, credit card debt, and bank accounts. Some assets are typically valued as of the date of agreement or court order; for example, real estate, mortgages, RRSPs and other investments.

Valuation

All assets are valued as the cash-in-hand value of the assets, even if the assets are not going to be sold. So, for example, the matrimonial home is often valued by deducting the mortgage, real estate commission, legal fees and disbursements. Some assets are typically valued as of the date of separation; for example, cars, credit card debt, and bank accounts. Some assets are typically valued as of the date of agreement or court order; for example, real estate, mortgages, RRSPs and other investments.

Short Marriages

 In a marriage of short duration one party may be allowed to retain the assets they brought into the marriage. Often the assets acquired before the marriage will be divided unequally, while those acquired during the marriage will be divided equally.