Matrimonial Property:December 13, 2005 Q – What is matrimonial property? A- Matrimonial is any property either spouse owns or obtains before or during the marriage. There are a few exceptions - see FAQ 'What is not matrimonial property? (below)'
Matrimonial property can be: - Your family home if you and/or your spouse own it
- Other property you or you spouse own such as a cottage
- An apartment lease
- Furniture
- Cars or other vehicles
- Pensions including CPP
- RRSPs (Registered retirement Savings Plans)
- Cash and savings
- Stocks and Bonds
- An employment severance package.
You should talk with a lawyer about the property you own and whether it might be considered matrimonial property. The Nova Scotia Matrimonial Property Act sets out the law on matrimonial property. Q – What is not matrimonial property? A- 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 you by a court. For example, an insurance payment for injuries you received in a car accident.
- Personal possessions such as clothes.
- Business assets
- Property that you or your spouse acquired after you separated provided it was not purchased with money saved during the marriage.
Q - What if our home is only in my spouse’s name? A – Both spouses have equal rights to live in the matrimonial home even if only one spouse is on the deed. A 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. Q - Do common law and same sex couples have the same rights to matrimonial property as married couples? A – Common law and same sex couples cannot ask for a division of property under the Nova Scotia Matrimonial Property Act unless they have a Registered Domestic Partnership. If they don’t have a Registered Domestic Partnership, if the relationship ends, each partner can keep all the assets he or she purchased or that is in his or her name. If one partner worked part-time or stayed at home so that he could care for the children and look after the home, he or she may have a claim against the other partner depending on the circumstance. Click here to download "And they lived happily ever after…rights and responsibilities of common law partners" and click here to read other FAQs in the Family Law section about common law relationships. Q - Who decides how property is divided? A – Spouses can come to an agreement on how to divide their property. You can make this agreement before you enter into the marriage. This is called a pre-nuptial agreement. Or you can agree before or after you separate. This is called a separation agreement.
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 the court for a division of property under the Matrimonial Property Act. You can do this at any time after you separate or as part of your divorce. Q - How is property divided? A – The general rule is that matrimonial property will be divided equally between the spouses. Each spouse must have his or her property and any property they own jointly valued or appraised. Usually the value is based on the value at the date of separation. Your and your spouse’s lawyer can then try to help you and your spouse work out an acceptable agreement. If you cannot reach an agreement, the court will take the value of each spouse’s assets and subtract the matrimonial debt owed on the property. Then, if the value of one spouse’s assets is higher than the other the judge will order an equalization’ payment by one spouse to the other so that the value of each spouse’s assets is the same. Q - Can a judge order an unequal division of matrimonial property? A - Yes if an equal division would be unfair. 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’s could build his or her business
- One spouse contributed to 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 your lawyer. Q - If I leave the home do I give up my rights to share in the matrimonial property? A - 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? A – Yes. Pensions including RRSPs and Canada Pension Plan are valuable matrimonial assets that should not be overlooked. Usually, there is an equal division of pensions earned during the marriage or Registered Domestic Partnership. You should talk with your lawyer about how to value the pension. You should not give up you rights to a share in your spouse’s pension before you get legal advice. Q – Can I share in my spouse’s business assets? A- Usually, business assets are not considered matrimonial assets. However, if you worked or helped build the business and were not paid or only paid a nominal amount you may apply to the court for a share of the business assets. The court may order your spouse to pay you for your work or award you a share 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? A – As a general rule both spouses are equally responsible for matrimonial debts. Usually you are not responsible for your spouse’s non-matrimonial debts unless you co-signed for them. For example, you would not usually be responsible for debts incurred by your spouse to run a business or debts acquired by your spouse before the marriage. If you get a second credit card on your account for your spouse, you would be responsible for those debts. You may also share responsibility for your spouse’s debts if they were used to purchase something of benefit to you and/or your family. Examples are heating oil or a family vacation. If you feel that an equal division of matrimonial debt would be unfair, you should talk to a lawyer about your options. Q - Can property settlements be changed? A –Courts are reluctant to change property settlements in a pre-nuptial or separation agreement unless either spouse did not have advice from a lawyer before signing the agreement or the agreement is very unfair to one spouse. Once the divorce is final, property settlements cannot usually be changed. If you want to change a property settlement you should get advice from a lawyer. Q - Where can I get more information? A – Click here to download "Understanding the Law - A Guide for Women in Nova Scotia" 4th Edition, a publication of the Nova Scotia Association of Women and the Law. For information for common law and same sex couples click here. return to top of page
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