Division Background
Division Of Assets/Matrimonial Property Law
Real Estate Division

Family Property Law & Real Estate Lawyer

The basic presumption is that most property acquired during the marriage will be divided equally. However, in exceptional circumstances the court may determine that an unequal distribution of property is appropriate.

Section 95 of the Family Law Act outlines unequal division as follows:

Unequal division by order 95

  1. The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to
    1. equally divide family property or family debt, or both, or
    2. divide family property as required under Part 6 [Pension Division].
  2. For the purposes of subsection (1), the Supreme Court may consider one or more of the following:
    1. the duration of the relationship between the spouses;
    2. the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];
    3. a spouse’s contribution to the career or career potential of the other spouse;
    4. whether family debt was incurred in the normal course of the relationship between the spouses;
    5. if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
    6. whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;
    7. substantially reduced the value of family property, or real estate.
    8. disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;
    9. a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;
    10. any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.
  3. The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met.

There is certain property which will not be considered marital property and therefore not included in the division of assets. This includes property owned prior to marriage; gifts and inheritance; and damages in tort. The party claiming the property to be exempt will have the onus to prove it is so.

When determining the value of any property, the valuation date will be the date the property is divided unless there is an agreement between the parties or a court order indicating that a different date should be used.

While negotiations are ongoing with respect to property, or you await your trial date, applications can be made to the court for interim relief with respect to any property. For example, a spouse may apply for exclusive possession of the matrimonial home, household goods or vehicles. When making an order for exclusive possession, the court will consider the availability of accommodation; needs of the children; financial position of each party; and any pre-existing orders or agreements regarding property or support.

There are several factors which must be considered when determining what is considered matrimonial property and how it should be divided. The division of these assets and property can also be very difficult and overwhelming. It is best to consult a lawyer in order to consider the best options in dividing your assets and also seeking interim relief before final agreements and orders are made with respect to the property.

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