Matrimonial Property Act

amended 1995-96, c. 13, s. 83

AND WHEREAS for that purpose it is necessary to recognize the contribution made to a marriage by each spouse;

AND WHEREAS in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the termination of a marriage relationship;

AND WHEREAS it is necessary to provide for mutual obligations in family relationships including the responsibility of parents for their children;

AND WHEREAS it is desirable to recognize that childcare, household management and financial support are the joint responsibilities of the spouses and that there is a joint contribution by the spouses, financial and otherwise, that entitles each spouse equally to the matrimonial assets:

Short title

1 This Act may be cited as the Matrimonial Property Act. R.S., c. 275, s. 1.

Interpretation

2 In this Act,

(a) "business assets" means real or personal property primarily used or held for or in connection with a commercial, business, investment or other income-producing or profit-producing purpose, but does not include money in an account with a chartered bank, savings office, loan company, credit union, trust company or similar institution where the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes;

(b) "child" means a child of both spouses born within or outside the marriage and includes

(i) a person adopted by both spouses, and

(ii) a person whom both spouses have demonstrated a settled intention to treat as a child of the marriage,

but does not include a person placed with them as foster parents for consideration by a person having lawful custody;

(c) "court" means the Trial Division of the Supreme Court unless the context otherwise requires;

(d) "dwelling" includes a house, condominium, cottage, mobile home, trailer or boat occupied as a residence;

(e) "marriage contract" means a marriage contract pursuant to Section 23;

(f) "separation agreement" means an agreement in writing between spouses who are living or intend to live separate and apart;

(g) "spouse" means either of a man and woman who

(i) are married to each other,

(ii) are married to each other by a marriage that is voidable and has not been annulled by a declaration of nullity, or

(iii) have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year,

and for the purposes of an application under this Act includes a widow or widower. R.S., c. 275, s. 2.

"matrimonial home" defined

3 (1) In this Act, "matrimonial home" means the dwelling and real property occupied by a person and that persons spouse as their family residence and in which either or both of them have a property interest other than a leasehold interest.

Property only partly used as matrimonial home

(2) Where property that includes a matrimonial home is used for other than residential purposes, the matrimonial home only includes that portion of the property that can reasonably be regarded as necessary for the use and enjoyment of the family residence.

Home owned by corporation

(3) The ownership of a share or an interest in a share of a corporation entitling the owner to the occupation of a dwelling owned by the corporation is deemed to be an interest in the dwelling for the purposes of this Section.

More than one matrimonial home

(4) A person and the persons spouse may have more than one matrimonial home. R.S., c. 275, s. 3.

"matrimonial assets" defined

4 (1) In this Act, "matrimonial assets" means the matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage, with the exception of

(a) gifts, inheritances, trusts or settlements received by one spouse from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children;

(b) an award or settlement of damages in court in favour of one spouse;

(c) money paid or payable to one spouse under an insurance policy;

(d) reasonable personal effects of one spouse;

(e) business assets;

(f) property exempted under a marriage contract or separation agreement;

(g) real and personal property acquired after separation unless the spouses resume cohabitation.

Damages or insurance proceeds

(2) Notwithstanding clauses (b) and (c) of subsection (1), an award or settlement of damages in court or money being paid or payable under an insurance policy is a matrimonial asset to the extent that it is made, paid or payable in respect of a matrimonial asset.

Resumption of cohabitation

(3) For the purposes of clause (g) of subsection (1), spouses are deemed not to have resumed cohabitation where there has been a resumption of cohabitation by the spouses during a period or periods in aggregate not exceeding more than ninety days with reconciliation as its primary purpose.

Shares of corporation

(4) Where property owned by a corporation would, if it were owned by a spouse, be a matrimonial asset, then shares in the corporation owned by the spouse having a market value equal to the value of the benefit the spouse has in respect of that property are matrimonial assets. R.S., c. 275, s. 4.

Application of Act to spouses

5 (1) This Act applies to spouses who entered into marriage before or after the first day of October, 1980.

Application of Act to property

(2) This Act applies to real and personal property whether acquired by a spouse before, on or after the first day of October, 1980.

Where proceeding pending

(3) This Act applies where a proceeding to determine the rights as between spouses in respect of real or personal property has been commenced and not finally decided before the first day of October, 1980.

Where divorce final before October 1, 1980

(4) This Act does not apply to persons who have received a decree absolute of divorce before the first day of October, 1980.

Where existing agreement by spouses

(5) This Act does not apply to spouses in relation to real and personal property provided for in an agreement entered into by those spouses before the first day of October, 1980. R.S., c. 275, s. 5.

Equal right of possession of matrimonial home

6 (1) A spouse is equally entitled to any right of possession of the other spouse in a matrimonial home.

Termination of right of possession

(2) Subject to an order of the court under this or any other Act and subject to a separation agreement that provides otherwise, a right of a spouse to possession by virtue of subsection (1) ceases upon the spouse ceasing to be a spouse. R.S., c. 275, s. 6.

Designation of matrimonial home

7 (1) Spouses may designate, by instrument in writing executed by both spouses, any property as their matrimonial home and following the registration of such a designation in the registry of deeds for the registration district in which the property is located any other property that otherwise would be a matrimonial home and is not so designated ceases to be a matrimonial home.

Change or cancellation

(2) Spouses may, by instrument in writing executed by both spouses and registered in the registry of deeds, change or cancel a designation made under subsection (1).

Proof of execution

(3) A designation, change or cancellation of a designation made under this Section shall be proved as required by the Registry Act.

Deemed cancellation

(4) A designation made under this Section is deemed to be cancelled upon the registration of

(a) a court order cancelling the designation;

(b) proof of death of one of the spouses; or

(c) a conveyance disposing of the property designated as a matrimonial home.

Effect of cancellation

(5) Upon the cancellation of a designation made under this Section, property rights as between spouses shall be determined as if the designation had never been made. R.S., c. 275, s. 7.

Disposition of matrimonial home

8 (1) Neither spouse shall dispose of or encumber any interest in a matrimonial home unless

(a) the other spouse consents by signing the instrument of disposition or encumbrance, which consent shall not be unreasonably withheld;

(b) the other spouse has released all rights to the matrimonial home by a separation agreement or marriage contract;

(c) the proposed disposition or encumbrance is authorized by court order or an order has been made releasing the property as a matrimonial home; or

(d) the property is not designated as a matrimonial home and an instrument designating another property as a matrimonial home of the spouses is registered and not cancelled.

Disposition contrary to subsection (1)

(2) Where a spouse disposes of or encumbers an interest in a matrimonial home contrary to subsection (1), the transaction may be set aside by the other spouse upon an application to the court unless the person holding the interest or encumbrance acquired it for valuable consideration, in good faith and without notice that the property was a matrimonial home.

Affidavit respecting disposition

(3) An affidavit of the person making a disposition or encumbrance verifying that

(a) the person is not a spouse at the time of making the disposition or encumbrance;

(b) the property disposed of or encumbered has never been occupied by the person and the persons spouse as their matrimonial home; or

(c) the spouse of that person has released all rights to the matrimonial home by a separation agreement, marriage contract or designation made pursuant to this Act,

is, unless the property is designated or the person to whom the disposition or encumbrance is made had notice to the contrary, deemed to be sufficient proof that the property is not a matrimonial home. R.S., c. 275, s. 8.

Notice to both spouses

9 (1) Where a person is proceeding to realize upon a lien, encumbrance or execution or exercises a forfeiture against property that is a matrimonial home, the spouse who has a right of possession by virtue of this Act has the same right of redemption or relief against forfeiture as the other spouse has and is entitled to any notice respecting the claim and its enforcement or realization to which the other spouse is entitled.

Service of notice

(2) Any notice to which a spouse is entitled by virtue of subsection (1) is deemed to be sufficiently served if served personally or by registered mail addressed to the person, upon whom notice is to be served, at the persons usual or last known address or, where none, the address of the matrimonial home, and, where notice is served by mail, the service is deemed to have been made on the fifth day after the day of mailing.

Application of payment by spouse

(3) Where a spouse makes any payment by way of or on account of redemption or relief against forfeiture under the right conferred by subsection (1), the payment shall be applied in satisfaction of the claim giving rise to the lien, encumbrance, execution or forfeiture.

Proceeding in absence of spouse

(4) Notwithstanding any other Act, where a person who commences a proceeding to realize upon a lien, encumbrance or execution or to exercise a forfeiture does not have sufficient particulars of a spouse entitled under subsection (1) for the purposes of the proceeding and a notice given under subsection (2) is not responded to, the proceeding may continue in the absence of the spouse and without regard to the interest of the spouse and any final order in the proceeding terminates the rights of the spouse under this Section. R.S., c. 275, s. 9.

Powers of court

10 (1) The court may by order, on the application of a spouse or any other person having an interest in property,

(a) determine if all or part of the property is a matrimonial home;

(b) authorize the disposition or encumbrance of a matrimonial home where the spouse whose consent is necessary

(i) cannot be found or is not available,

(ii) is not capable of giving consent, or

(iii) is unreasonably withholding consent,

subject to such terms and conditions as the court considers appropriate;

(c) dispense with the giving of a notice to a spouse required by this Act;

(d) direct the setting aside of any disposition or encumbrance of an interest in a matrimonial home and the revesting of the interest or any part of the interest upon such terms and subject to such conditions as the court considers appropriate.

Variation of order under clause (1)(b)

(2) The court may, on the application of a person subject to an order under clause (b) of subsection (1), discharge, vary or suspend any terms and conditions imposed in the order. R.S., c. 275, s. 10.

Powers of court respecting matrimonial home

11 (1) Notwithstanding the ownership of a matrimonial home and its contents, the court may by order, on the application of a spouse,

(a) direct that one spouse be given exclusive possession of a matrimonial home, or part thereof, for life or for such lesser period as the court directs and release any other property that is a matrimonial home from the application of this Act;

(b) direct the spouse to whom exclusive possession is given under clause (a) to pay such periodic or other payments to the other spouse as is prescribed in the order;

(c) direct that the contents of a matrimonial home that are matrimonial assets, or any part thereof, remain in the home for the use of the person given possession;

(d) determine the obligation to repair and maintain the matrimonial home and to pay for other liabilities arising in respect of the matrimonial home;

(e) authorize the disposition or encumbrance of the interest of a spouse in a matrimonial home who has not been granted exclusive possession;

(f) where a false affidavit is made respecting a matrimonial home or where a matrimonial home or any interest therein is disposed of contrary to the provisions of this Act, direct

(i) the person who made the false affidavit,

(ii) any person who knew at the time the affidavit was false and thereafter conveyed the property, or

(iii) any person who improperly disposed of the matrimonial home or interest therein,

to substitute other real property for the matrimonial home or to set aside money or security to stand in place of the matrimonial home, subject to such terms and conditions as the court considers appropriate.

Preservation of other remedy

(2) The authority of the court under clause (f) of subsection (1) is in addition to and not in substitution for any other remedy at law.

Application by child for matrimonial home

(3) Where a surviving spouse does not reside in the matrimonial home at the time of the death of the other spouse and a child resides in that matrimonial home at that time, the court may, on the application of the child, direct that the child be given possession of the matrimonial home

(a) until the child reaches the age of majority; or

(b) while the child is attending a postsecondary educational institution, until the age of twenty-four years,

and the court may make such other orders under subsection (1) as it deems appropriate.

Conditions for order for possession

(4) The court may only make an order for possession of the matrimonial home under subsection (1) or (3) where, in the opinion of the court,

(a) other provision for shelter is not adequate in the circumstances; or

(b) it is in the best interests of a child to make such an order.

Variation of order

(5) Where the court is satisfied that there has been a material change in the circumstances, it may discharge, vary or suspend an order made under clause (a), (b), (c) or (d) of subsection (1) or subsection (3), upon the application of a party to the original application. R.S., c. 275, s. 11.

Application for division of matrimonial assets

12 (1) Where

(a) a petition for divorce is filed;

(b) an application is filed for a declaration of nullity;

(c) the spouses have been living separate and apart and there is no reasonable prospect of the resumption of cohabitation; or

(d) one of the spouses has died,

either spouse is entitled to apply to the court to have the matrimonial assets divided in equal shares, notwithstanding the ownership of these assets, and the court may order such a division.

Limitation period for surviving spouse

(2) An application for the division of matrimonial assets shall be made by a surviving spouse within six months after probate or administration of the estate of the deceased spouse is granted by a court of probate and not thereafter.

Extension of time

(3) Notwithstanding subsection (2), where the court is satisfied that the surviving spouse did not know of the grant of probate or administration or did not have an adequate opportunity to make such an application, the court may extend the time for making the application but such an application shall relate only to matrimonial assets remaining undistributed at the date of the application.

Right of surviving spouse as additional right

(4) Any right that the surviving spouse has to ownership or division of property under this Act is in addition to the rights that the surviving spouse has as a result of the death of the other spouse, whether these rights arise on intestacy or by will. R.S., c. 275, s. 12.

Factors considered on division

13 Upon an application pursuant to Section 12, the court may make a division of matrimonial assets that is not equal or may make a division of property that is not a matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors:

(a) the unreasonable impoverishment by either spouse of the matrimonial assets;

(b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred;

(c) a marriage contract or separation agreement between the spouses;

(d) the length of time that the spouses have cohabited with each other during their marriage;

(e) the date and manner of acquisition of the assets;

(f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve a business asset;

(g) the contribution by one spouse to the education or career potential of the other spouse;

(h) the needs of a child who has not attained the age of majority;

(i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent;

(j) whether the value of the assets substantially appreciated during the marriage;

(k) the proceeds of an insurance policy, or an award of damages in tort, intended to represent compensation for physical injuries or the cost of future maintenance of the injured spouse;

(l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring;

(m) all taxation consequences of the division of matrimonial assets. R.S., c. 275, s. 13; revision corrected.

Statement of particulars of property

14 (1) When application is made for division of matrimonial assets, each spouse shall file with the court and serve on each other a statement, verified by affidavit, disclosing particulars of all property of that spouse.

Manner and form of statement

(2) A statement pursuant to subsection (1) shall be made in the manner and form required by the rules of the Supreme Court.

Order for confidentiality

(3) Where, in the opinion of the court, the public disclosure of any information contained in a statement filed under subsection (1) would constitute a hardship to a spouse, the court may order that the statement and any cross-examination thereon be treated as confidential and not form part of the public record. R.S., c. 275, s. 14.

Powers of court upon division

15 On an application for the division of matrimonial assets, the court may order

(a) that the title to any specified property granted by the court to a spouse be transferred to or held in trust for that spouse for such period, or absolutely, as the court may decide;

(b) the partition or sale of any property;

(c) that payment be made out of the proceeds of a sale ordered under clause (b) to one or both spouses, and the amount thereof;

(d) that any property forming part of the share of either or both spouses be transferred to or held in trust for a child to whom a spouse must provide support;

(e) that either or both spouses give such security, including a charge on property, that the court orders, for the performance of any order made under this Section;

(f) that one spouse pay to the other spouse such amount as is set out in the order for the purpose of providing for the division of the property,

and make such other orders and directions as are ancillary thereto. R.S., c. 275, s. 15.

Determination of question between spouses

16 (1) Either spouse may apply to the court for the determination of any question between the spouses as to

(a) the ownership or right to possession of any particular property;

(b) whether property is a matrimonial asset or a business asset,

except where an application has been made and not determined or an order has been made respecting the property under this Act.

Powers of court under subsection (1)

(2) Where an application is made under subsection (1), the court may

(a) make a declaration as to the ownership or right of possession in the property;

(b) make a declaration as to whether the property is a matrimonial asset or a business asset;

(c) where the property has been disposed of, order that a spouse pay compensation for the interest of the other spouse;

(d) order that the property be partitioned or sold;

(e) order that either or both spouses give such security, including a charge on property, that the court orders, for the performance of any order under this Section,

and may make such other orders and directions as are ancillary thereto. R.S., c. 275, s. 16.

Sale of security

17 The court may, on application, direct the sale of property charged as security under this Act upon such terms and conditions as the court considers appropriate. R.S., c. 275, s. 17.

Contribution to business asset by spouse

18 Where one spouse has contributed work, money or moneys worth in respect of the acquisition, management, maintenance, operation or improvement of a business asset of the other spouse, the contributing spouse may apply to the court and the court shall by order

(a) direct the other spouse to pay such an amount on such terms and conditions as the court orders to compensate the contributing spouse therefor; or

(b) award a share of the interest of the other spouse in the business asset to the contributing spouse in accordance with the contribution,

and the court shall determine and assess the contribution without regard to the relationship of husband and wife or the fact that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstances. R.S., c. 275, s. 18.

Interim order

19 The court may make such interim order as it considers necessary for the proper application of this Act, pending the bringing or disposition of an application under this Act. R.S., c. 275, s. 19.

Registration of orders

20 (1) An order made under this Act respecting real property may be registered in the registry of deeds in the registration district in which the property is located and, where it is not so registered, it does not affect the acquisition of an interest in that real property by a person in good faith without notice of the order.

(2) A notice of an order made under this Act respecting personal property in the form prescribed by regulations made pursuant to the Personal Property Security Act may be filed in the Personal Property Registry and, where it is not so filed, the order does not affect the acquisition of an interest in that personal property by a person in good faith without notice of the order.

(3) Where an order relates to goods that are designated by regulations made pursuant to the Personal Property Security Act as serial numbered goods and a notice does not describe those goods by serial number, the notice is deemed not to be filed pursuant to subsection (2) with respect to those goods. R.S., c. 275, s. 20; 1995-96, c. 13, s. 83.

Presumption respecting ownership between spouses

21 (1) The rule of law applying a presumption of advancement in questions of the ownership of property as between husband and wife is abolished and in place thereof the rule of law applying a presumption of a resulting trust shall be applied in the same manner as if they were not married, except that

(a) the fact that property is placed or taken in the name of spouses as joint tenants is prima facie proof that each spouse is intended to have on a severance of the joint tenancy a one-half beneficial interest in the property; and

(b) money on deposit in a chartered bank, savings office, loan company, credit union, trust company or other similar institution in the name of both spouses shall be prima facie proof that the money is on deposit in the name of the spouses as joint tenants for the purposes of clause (a).

Application of subsection (1)

(2) Subsection (1) applies notwithstanding that the event giving rise to the presumption occurred before the first day of October, 1980. R.S., c. 275, s. 21.

Conflict of laws

22 (1) The division of matrimonial assets and the ownership of moveable property as between spouses, wherever situated, are governed by the law of the place where both spouses had their last common habitual residence or, where there is no such residence, by the law of the Province.

Immovable property

(2) The ownership of immoveable [immovable] property as between spouses is governed by the law of the place where that property is situated.

Consideration of value of immovable property

(3) Notwithstanding subsection (2), where the law of the Province governs the division of assets, the value of the immoveable [immovable] property wherever situated may be taken into consideration for the purposes of a division of assets. R.S., c. 275, s. 22.

Marriage contract

23 A man and a woman may enter into an agreement, to be known as a marriage contract, before their marriage or during their marriage while they are cohabiting, in which they agree on their respective rights and obligations

(a) under the marriage;

(b) upon separation;

(c) upon the annulment or dissolution of the marriage;

(d) upon the death of either spouse. R.S., c. 275, s. 23.

Contract or agreement in writing

24 A marriage contract or a separation agreement is void unless it is in writing and is signed by the parties and witnessed. R.S., c. 275, s. 24.

Capacity of minor

25 A minor who has capacity to contract marriage has capacity to enter into a marriage contract or a separation agreement that is approved by the court, whether the approval is given before or after the contract is entered into. R.S., c. 275, s. 25.

Best interests of child

26 The court may disregard any provision of a marriage contract or separation agreement affecting a child where, in the opinion of the court, it is in the best interests of the child to do so. R.S., c. 275, s. 26.

Agreement by executor or administrator

27 (1) An executor or administrator of a deceased spouse may enter into an agreement with a surviving spouse as to the ownership or division of property under this Act.

If surviving spouse is executor or administrator

(2) Where an executor or administrator of a deceased spouse is the surviving spouse, the court may appoint a person to act in the place of the executor or administrator under subsection (1). R.S., c. 275, s. 27.

Enforcement on death

28 A marriage contract or a separation agreement, or a provision thereof, that has its effect on the death of one of the parties thereto may be enforced by or against the estate of the deceased. R.S., c. 275, s. 28.

Harsh or fraudulent contract or agreement

29 Upon an application by a party to a marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. R.S., c. 275, s. 29.

Arbitration

30 (1) Parties to a marriage contract or separation agreement may, where both persons consent, refer any question as to their rights under this Act or the contract or agreement for determination by arbitration and the Arbitration Act then applies.

Order of court

(2) A copy of an arbitration award made pursuant to this Section, certified by the arbitrator to be a true copy, may be made an order of the court by filing it with the prothonotary of the court who shall enter the same as a record and it thereupon becomes and is an order of the court and is enforceable as such. R.S., c. 275, s. 30.

Enforcement of order or award for possession

31 It is the duty of a peace officer to enforce a court order made, or an arbitration award filed with the court, pursuant to this Act as it relates to peaceable possession of residential premises where

(a) the peace officers assistance is requested by a person named in the order; and

(b) the peace officer is satisfied as to the existence of the court order or court record of the arbitration award. R.S., c. 275, s. 31.

Regulations respecting forms

32 (1) The Governor in Council may make regulations respecting forms to be used for the purpose of this Act.

Regulations Act

(2) The exercise by the Governor in Council of the authority in subsection (1) shall be regulations within the meaning of the Regulations Act. R.S., c. 275, s. 32.

Dower and courtesy abolished

33 (1) Dower and curtesy [courtesy] at common law are abolished.

Existing right to dower preserved

(2) This Section does not apply in respect of a right to dower where the husband died before the first day of October, 1980.

Dower indemnity

(3) Where money has been paid into court as an indemnity in respect of a right to dower and the husband is alive on the first day of October, 1980, the husband of the person in respect of whose dower right the money was paid into court is entitled to be paid the money upon application to the prothonotary of the court, without order. R.S., c. 275, s. 33.