Division of Matrimonial Property
December 10, 2021
Family
Marriage is seen as a social and economic partnership in Canada, and therefore, upon the breakdown of the marriage, all matrimonial property acquired during the marriage should be divided fairly.
Matrimonial property comprises of all property acquired by either spouse, or both, between the date of marriage and the date of separation. It does not matter whose name the property is in.
In order to reach an overall settlement of matrimonial assets, there are several steps which should be taken. Before considering an acceptable division in line with current legislation and laws it is important to identify and value the various items of matrimonial property.
Matrimonial property includes the following assets:
- 1. Your family home (previously known as ‘matrimonial home’);
- 2. Other property you or your spouse own and use as a family, such as a vacation home;
- 3. Furniture;
- 4. Cars or other vehicles;
- 5. Pensions from current or past employment;
- 6. RRSPs (Registered Retirement Savings Plans);
- 7. Canada Pension Plan credits;
- 8. Cash and savings, including TFSAs (Tax Free Savings Accounts);
- 9. Income tax refunds;
- 10. Stocks, bonds, mutual funds and GICs; and
- 11. An employment severance package.
There are a few exceptions to what is considered Matrimonial Property.
- 1. Property you agreed to exclude in a pre-nuptial agreement, a marriage contract or separation agreement.
- 2. Value of the property before the marriage. If a spouse owned a property prior to marriage, then the value at the time of marriage is exempt
- 3. Any property acquired as an inheritance after marriage
- 4. Any property acquired as a gift from a third party after marriage
- 5. An insurance payout or damages awarded to you by a court or by an insurance company. For example, an insurance payment for injuries you received due to a car accident.
On the other hand, matrimonial debt or family debt is a debt that was acquired by both spouses, or either spouse, during the marriage that was used for family matters such as for payment of 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, such as to maintain the family home or other assets.
As a default both debts and property acquired during marriage is divided equally between the spouses, however, based on Section 8 of the Family Property Act of Alberta the following factors must be considered for distribution of property:
- 1. Contribution of each spouse. For instance, if the wife was a homemaker whole life, then it can be argued she should receive a greater percentage of the family property.
- 2. The Contribution made for acquisition, conservation, and improvement of the family property, such as business that is successful primarily due to the efforts of one spouse
- 3. Financial resources and liabilities of each spouse
- 4. Earning capacity of both spouses
- 5. The length of marriage
- 6. Agreements entered by the parties before or during marriage
- 7. Dissipation of assets, that is when one spouse uses marital assets for their own benefit or depletes the value of the family assets (See details on our blog: How to Stop Dissipation of Property?)
- 8. Tax liabilities
It is possible to protect your assets during divorce by claiming exemptions for your property and as well as demand greater percentage in the family property. Our matrimonial property division’s lawyers at Laws & Beyond have successfully represented our family law clients in numerous property division cases and reached the best outcome for our clients.
If you are facing breakdown of the relationship and require the services of an effective Calgary Family Lawyer for the fair division of the family property, then call us today at 403-300-5297 or book a consult here.
— Written by Megha Sharma
