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Matrimonial Property

For more comprehensive family law information go to:

nsfamilylaw

This page only gives legal information. It is not intended to replace legal advice from a lawyer.

Go to the ‘Family Law Help’ page for information on how to find a lawyer, and for a list of other family law resources in Nova Scotia.

On this page ‘spouse’ means same or opposite-sex married spouses or registered domestic partners. The information here does not apply to common law couples. For information about common law relationships go to LISNS page on common law relationships, and nsfamilylaw.ca.

Nova Scotia’s Matrimonial Property Act sets out the law on matrimonial property.  The Matrimonial Property Act only applies to married spouses and registered domestic partners. It does not apply to common law couples.

Q - Do common law and same sex couples have the same rights to matrimonial property as married couples?

No. The Matrimonial Property Act does not apply to common law relationships. Common law couples cannot ask for a division of property under the Nova Scotia Matrimonial Property Act unless they have a Registered Domestic Partnership.

For information about common law relationships go to nsfamilylaw.ca.

Q - What is matrimonial property?

Matrimonial property is any property or assets either spouse owns or obtains before or during the marriage. It doesn’t matter whose name the property is in. The starting point in law (‘presumption’) is that all matrimonial property should be shared equally (50/50) between the spouses if they separate or divorce.

Matrimonial property includes things like:

  • Your family home (‘matrimonial home’) if you and/or your spouse own it;
  • Other property you or your spouse own and use as a family, such as a cottage;
  • Furniture;
  • Cars or other vehicles;
  • Pensions, including CPP;
  • RRSPs (Registered Retirement Savings Plans);
  • Cash and savings;
  • Income tax refunds;
  • Stocks, bonds, GICs and mutual funds; and
  • An employment severance package.

There are a few exceptions - see "What is not matrimonial property?" below.

You should talk with a lawyer about the property you own and whether it might be considered matrimonial property.

Q - What is not matrimonial property?

The following are not usually considered matrimonial property:

  • A gift or inheritance you or your spouse received from another person. However, it may be matrimonial property if it was used for the benefit of the family. For example, you inherited a cottage and have used it for family vacations;
  • An insurance payout or damages awarded to you by a court. For example, an insurance payment for injuries you received in a car crash;
  • Personal possessions such as clothes;
  • Business assets (ie., property like tools or a factory building used in connection with a commercial business);
  • Property that you or your spouse acquired after you separated; or
  • Property you agreed to exclude in a pre-nuptial agreement, marriage contract or separation agreement.

Q - What is matrimonial debt?

Matrimonial or family debt is debt that was acquired by both or either spouse during the marriage that was used for ordinary family matters such as household expenses, the mortgage on the family home or debt used to finance a family car. If some debts were acquired after you separated from your spouse they may be considered matrimonial debts if they were used to pay for necessary living expenses or to maintain the house or car or other assets.

Q - How are matrimonial debts and matrimonial property usually divided?

The general rule is that matrimonial property and matrimonial debts will be divided equally (50/50) between the spouses.

Each spouse must usually have his or her assets, and any property they own jointly, valued or appraised. Usually the value is based on the value at the date of separation, although the ‘valuation date’ may be a different date, such as the date when either spouse applies to court for property division.

Once you know the value of your matrimonial property, each spouse should value their matrimonial debts and deduct them from their matrimonial property to get the total or “net” amount of the value of their property.

The spouse with the higher net amount after deducting matrimonial debts from matrimonial property should then pay over 50% of this net amount to the other spouse, either with a transfer of money or property. This ensures that both spouses end up with the same net amount of money and/or property.

For example, the spouses share the $100,000 value of the matrimonial home, meaning each receives $50,000. The amount of matrimonial debt is $10,000 which the spouses agree to share, meaning they each take on $5000 debt and each now has net matrimonial property of $45,000. However, one spouse kept a cottage that was used for family vacations. The cottage is worth $50,000. Therefore, the spouse who kept the cottage now has $95,000 worth of net matrimonial property while the other spouse only has $45,000 of net matrimonial property. The spouse with the higher net matrimonial property must pay over $25,000 to the other spouse so they both end up with the same amount of net matrimonial property (ie., $70,000).

Q - Who decides how matrimonial property is divided?

Spouses can come to an agreement on how to divide their property. You can make this agreement before you enter into the marriage (‘pre-nuptial agreement’), or during the marriage (‘marriage contract’). Or you can agree after you separate. This is called a separation agreement.

Your lawyer and your spouse's lawyer can help you and your spouse work out an acceptable agreement. Coming to an agreement on how to divide your property may be a lot less expensive than going to court to divide your property so you should seriously consider how you may come to a fair agreement with your spouse.

Before you sign any agreement you should get advice from a lawyer. You should not use the same lawyer as your spouse.

If you cannot reach an agreement with your spouse, either of you may apply to court for a division of property under the Matrimonial Property Act. A judge will make an order stating how you are to divide your property. In most cases the judge will order you and your spouse to share your matrimonial assets and debts 50/50. You can apply to court any time after you separate or as part of your divorce.

Q - Can agreements be changed?

Courts are reluctant to change property agreements in a pre-nuptial agreement, marriage contract or separation agreement unless either spouse did not have advice from a lawyer before signing the agreement, or if one spouse hid property and assets from the other spouse at the time of signing the agreement, or if a spouse was pressured into signing the agreement. Courts may also change agreements if the agreement ends up being severely unfair to one spouse.

If you want to try to change an agreement you should get advice from a lawyer.

Q - Can a judge order a divison of matrimonial property that is not 50/50?

Yes, but only if a 50/50 division would be unfair. In most situations judges will order a 50/50 division of matrimonial property and will only divide property unequally in limited types of situations. Examples of where this might happen include:

  • The marriage or Registered Domestic Partnership was short and one spouse brought most of the property to the relationship;
  • One spouse wasted the matrimonial property. For example by gambling away the couple's savings;
  • One spouse gave up a career to look after the children so that the other spouse could build his or her business or career;
  • One spouse contributed to the education or professional career of the other spouse.

If you feel an equal division of matrimonial property would not be fair, you should talk to a lawyer.

Q - What if our home is only in my spouse's name?

Both spouses have equal rights to live in the family home (‘matrimonial home’) even if only one spouse is on the deed. One spouse is not allowed to sell or mortgage the home without the other spouse's consent. When couples separate or divorce usually one leaves the home. If they cannot agree on who will leave, either may apply to the court for an 'exclusive possession' order. This means that a judge may order one spouse to leave the home. A spouse who is ordered to leave by the court does not lose their ownership interest in the home, just the right to live in the home. A judge will consider which spouse has custody of the children and whether it is in the best interests of the children to stay in the home.

Q - If I leave the home do I give up my rights to share in the matrimonial property?

No. You do not give up rights to share in the matrimonial property by leaving the matrimonial home.

Q - Am I entitled to a share in my spouse's pension?

Yes, you may be. Workplace pensions, RRSPs and Canada Pension Plan credits are valuable matrimonial assets that should not be overlooked. Usually, pensions earned before and during the marriage or Registered Domestic Partnership are divided 50/50, although there may be some exceptions like where the marriage or registered domestic partnership only lasted for a short time.

It is difficult to figure out how much a pension is worth so you may need help from an actuary. Also, pension laws are complicated, so you should talk with a lawyer. You should not give up rights to a share in your spouse's pension without getting legal advice.

Q - Can I share in my spouse's business assets?

Usually business assets (ie., property and assets like tools or a factory building used in connection with a commercial business) are not considered matrimonial assets. This means that unless they are in the name of both spouses they are not assumed to be divided 50/50.

However, you may be entitled to a share of the business assets that are in your spouse’s name if you worked for or helped build or maintain the business. This is especially so if you were not paid or were only paid a small amount for the work you did for the business.

As well, if a 50/50 division of the matrimonial assets and debts does not give you a fair share of what you and your spouse own at the time of separation then you could be entitled to share in some of the business assets. If you think you have a claim against your spouse's business, you should talk with a lawyer

Q - Am I responsible for my spouse's debts that are not matrimonial debts?

As discussed above, as a general rule both spouses are equally responsible for a debt that is in both your name and your spouse’s name. You may also share responsibility for debts in your spouse’s name only, if the money was used to buy something that benefited you and/or your family. Examples are heating oil or a family vacation.

Usually you are not responsible for your spouse's non-matrimonial debts unless you co-signed or guaranteed them. For example, you would not usually be responsible for debts your spouse acquired to run their business, or debts acquired by your spouse before the marriage.

Debt division can be very complicated, so it is best to talk to a lawyer about your options.

Q - I am concerned that my spouse might borrow money on joint accounts or for debts I co-signed, without my consent, what do I do?

For debts that you guaranteed or co-signed for on behalf of your spouse, you should contact the bank and notify them that you and your spouse are separated and you do not consent to be responsible for any further money borrowed by your spouse.

If your spouse has access to a secondary credit card for which you are the primary card holder (ie., your spouse has a copy of a credit card that is in your name only and for which only you are responsible for paying the bills) you should cancel the secondary credit card if you are concerned that they will abuse it.

You should also consider talking to your bank about any joint accounts. You may consider reducing any overdraft that your spouse also has access to and requesting that a joint account be changed to require two signatures to access money in the account.

Q - What else should I consider on separation?

You should consider removing your spouse as your beneficiary on any RRSPs, pension death benefit policies and insurance policies. As well, you should consider seeing a lawyer and getting a new will, enduring power of attorney and personal directive.

Q - Where can I get more information?

For more information about matrimonial property go to nsfamilylaw.ca.

If have a family law problem and need legal advice you should try to see a lawyer. Here are some ways to find a lawyer:

  • If you have a low income and can’t afford a lawyer contact Nova Scotia Legal Aid to see if you qualify for their help. Legal Aid is listed in the telephone book under ‘Legal Aid’, or go to nslegalaid.ca to get contact information for your local Legal Aid office;
  • To find a lawyer in private practice – that is, a lawyer you would pay - look in the Yellow Pages under lawyers – there is separate section for family law; or
  • Call the Legal Information Society’s Lawyer Referral Service at 902-455-3135 or 1 800 665-9779 toll free in Nova Scotia.

See the page on family law help for other family law resources.

June 2013

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