Property Shared by
Spouses and Life Partners

This topic discusses what property is shared between spouses and life partners (also known as adult interdependent partners) and what property is exclusively owned by a spouse or life partner.

From January 1, 2020, the Family Property Act has replaced the Matrimonial Property Act. The Matrimonial Property Act however continues to apply in certain limited circumstances. The first step is thus to determine whether the Matrimonial Property Act applies to your relationship.

The Matrimonial Property Act finds application in the following circumstances:

• If a judgment of divorce was granted before January 1, 2020;

• If a declaration of nullity of marriage was made before January 1, 2020;

• If a judgment of judicial separation was granted before January 1, 2020;

• If a declaration or irreconcilability under the Family Law Act was obtained before January 1, 2020;

• If spouses were living separate and apart before January 1, 2020;

• If proceedings were commenced under the Matrimonial Property Act and not fully disposed of – although the parties may agree to dispose of the matter under the Family Property Act.

If the Matrimonial Property Act finds application, the property shared between spouses includes household goods and the matrimonial home. Household goods is personal property owned by either one or both spouses and was ordinarily used or enjoyed by one or both spouses or one or more of the children residing in the matrimonial home, for transportation, household, educational, recreational, social or esthetic purposes.

The matrimonial home is property that is owned or leased by one or both spouses, that is or has been occupied by the spouses as their family home, and that is a house, or part of a house, or that is a self-contained dwelling unit, or part of business premises used as living accommodation, or  a mobile home, or a residential unit as defined in the Condominium Property Act, or a suite.

Should a Court make an order in respect of matrimonial property, the market value of such property at the date of marriage or acquisition of such property is excluded in the following circumstances:

• If the property was acquired by a spouse by gift from a third party;

• If the property acquired by a spouse by inheritance;

• If the property acquired by a spouse before the marriage,

• If the property is an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses; or

• If the property is the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses.

The Family Property Act applies to all other eligible relationships, not covered by the Matrimonial Property Act. To see the requirements, please scroll to the topic ‘Cohabitating Relationships and Adult Interdependent Partnerships’.

As in the Matrimonial Property Act, household goods and the family home are included as property shared by spouses or partners. Household goods is personal property owned by either one or both spouses and was ordinarily used or enjoyed by one or both spouses or one or more of the children residing in the matrimonial home, for transportation, household, educational, recreational, social or esthetic purposes.

The family home is property that is owned or leased by one or both spouses, that is or has been occupied by the spouses as their family home, and that is a house, or part of a house, or that is a self-contained dwelling unit, or part of business premises used as living accommodation, or  a mobile home, or a residential unit as defined in the Condominium Property Act, or a suite.

The market value of the following property may however be excluded in certain circumstances:

• Property acquired by a spouse or partner by gift from a third party; or

• Property acquired by a spouse or partner by inheritance; or

• Property acquired by a spouse before the marriage, in the case of spouses who were not in a relationship of interdependence with each other immediately before the marriage; or

• Property acquired by a spouse before the eligible relationship began, in the case of spouses who were in an eligible relationship with each other immediately before the marriage; or

• Property acquired by a spouse or partner before the eligible relationship began; or

• An award or settlement for damages in tort in favour of a spouse or adult interdependent partner, unless the award or settlement is compensation for a loss to both spouses or partners; or

• The proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses or partners.

Unless spouses or partners have entered into a written agreement which meets certain requirements, the relevant date for valuation of property not excluded, is the date of the trial. The market value of excluded property is determined:-

• in the case of spouses who were not in a relationship of interdependence with each other immediately before the marriage, on the date of the marriage, or on the date the property was acquired by the spouse, whichever is later;

• in the case of spouses who were in a relationship of interdependence with each other immediately before the marriage, on the date the relationship of interdependence began, or on the date the property was acquired by the spouse, whichever is later;

• in the case of interdependent partners, on the date the relationship of interdependence began, or on the date the property was acquired by the adult interdependent partner, whichever is later.

In addition to the aforesaid excluded property it must be borne in mind that the provisions of the Family Property Act do not allow for any transfer of a benefit, pay-out of money or contributions from a pension plan or retirement account if such transfer or pay-out would otherwise be impermissible.

It must finally be borne in mind that the family home is subject to special, specific considerations more fully explored under the topic ‘Staying in Your Home during Marriage Breakdown’ as well as ‘Rights to your home under the Dower Act’.