Matrimonial Property, Pensions & Debts

Matrimonial property is property acquired by either or both married spouses before or during their marriage. It is sometimes called 'matrimonial assets.' Matrimonial property includes the matrimonial home, which is the family home where you and your spouse lived while you were married. The law that deals with matrimonial property is called the Matrimonial Property Act.  

Matrimonial property includes things like:

• your family home (‘matrimonial home’) if you and/or your spouse own it;

• other property you or your spouse own and use as a family, such as a cottage;

• furniture;

• cars or other vehicles;

• pensions, including Canada Pension Plan;

• RRSPs (Registered Retirement Savings Plans);

• cash and savings;

• income tax refunds;

• stocks, bonds, GICs and mutual funds; and

• employment severance packages.

There are some things that are usually not considered to be matrimonial property and these generally include:

• gifts, inheritances or trusts, unless used for the benefit of the family during the marriage

• an award or settlement of damages, unless used for the benefit of the family during the marriage

• insurance proceeds, unless used for the benefit of the family during the marriage

• reasonable personal effects (personal items like clothing)

• business assets

• property exempted under a marriage contract or separation agreement

• property acquired after separation

If you are unsure whether some of your property will be considered a matrimonial asset, you should speak with a lawyer for advice.

Division of property is how spouses divide what they own. This includes division of their debts. Each province has its own laws about property division for married couples who separate. Nova Scotia’s law is called the Matrimonial Property Act. It applies to married spouses and registered domestic partners. It does not apply to common law spouses.

Spouses who cannot agree on how to divide their property can apply to the court after separation or the death of one of the spouses.

Yes, in most situations. The basic rule in the Matrimonial Property Act is that spouses are entitled to an equal division of assets when they separate or divorce. There can be situations where an unequal division is appropriate, or where a division of non-matrimonial assets is appropriate.

The spouses can agree to whatever arrangement they want, too. However, before entering into any agreement, each spouse should know:

• what all of the assets are

• the values of those assets, and

• what their legal rights and obligations are. 

This is especially true if the proposed agreement does not provide for an equal sharing of the assets for both parties.

Courts are hesitant to change property agreements in a cohabitation agreement or separation agreement unless:

• one or both of the spouses did not have advice from a lawyer before signing the agreement, or

• if one spouse hid property and assets from the other spouse at the time the agreement was signed, or

• if a spouse was pressured into signing the agreement. 

Courts may change agreements if the agreement ends up being really unfair to one spouse.

If you want to try to change an agreement you should get advice from a lawyer.

Yes, but only if a 50/50 division would be really unfair. In most situations judges will order a 50/50 division of matrimonial property and will only divide property unequally in very limited types of situations. Examples of where an unequal division might happen include:

• the marriage or registered domestic partnership was short and one spouse brought most of the property into 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 could develop a business

If you feel an equal division of matrimonial property would not be fair, you should talk to a lawyer.

Reasonable ‘personal effects’ (belongings) are normally not considered to be matrimonial assets. What a ‘reasonable personal effect’ is may be hard to figure out in some cases, especially if an item is valuable, like jewelry. Legal advice is often helpful to assist you in deciding what items are ‘personal.’

Business assets are normally not divided as matrimonial assets. There can be exceptions if a spouse has made certain kinds of contributions to the ‘acquisition, management, maintenance, operation or improvement of a business asset of the other spouse.’

The division of business assets may be considered on a request for an unequal division. These issues are complex. You should see a lawyer to get advice on this issue.

Either spouse may make an application under the Matrimonial Property Act for interim relief. Interim relief often means 'in the meantime' or temporary relief. This relief can include a request for ‘exclusive possession’ of the matrimonial home. If you are granted exclusive possession by the court, this means that you can live in the home, and the other person must leave. These applications do not affect either person’s interest in the home, or their right to own the home or share in the proceeds of the home, if it is sold.

There are several things to consider with this type of request, including whether:

• there are children

• there are other adequate accommodations for each of the spouses, and

• it is in the children’s best interests to stay in the home. 

See a lawyer for advice.

No. You do not give up rights to share in the matrimonial property by leaving the matrimonial home.

Both spouses have equal rights to live in the matrimonial home even if only one spouse is named on the deed. One spouse is not allowed to sell or mortgage the home without the other spouse's consent.

Usually one spouse leaves the home when the couple separates. If the spouses cannot agree on who will leave, either spouse may apply to the court for an 'exclusive possession' order. This means that a judge may order one spouse to leave the home. A spouse who is ordered to leave by the court does not lose their ownership interest in the home, just the right to live in the home. A judge will consider which spouse has decision-making responsibility for the children and whether it is in the best interests of the children to stay in the home.

That will depend on each situation. The parties, by agreement, can decide who is to arrange, carry out or pay for things like house repairs, insurance, mortgage and taxes on the matrimonial home.

If the parties cannot agree, then either one of them can file a motion for ‘interim’ relief requesting that a judge decide these issues for the short term until a final hearing or trial can be scheduled.   

Get legal advice about your rights and obligations. A lawyer can help you sort out different ways to do this that may be able to benefit you and your family.

It depends on what is in the house and whether the items are matrimonial assets. The parties can make an agreement on these issues. If they cannot agree, either spouse can apply to a court for interim relief. As part of this request, either one can ask that the contents of a matrimonial home that are matrimonial assets, or any part of these assets, stay in the home for the use of the person given possession of the home. A lawyer will be able to explain what is most likely to happen in any given situation, based on the facts of your case and the law.

The final decision on who will get to keep the matrimonial property can be made by the spouses, or by a judge as part of a final hearing or trial on the division of assets. Remember that the Matrimonial Property Act states that either spouse is entitled to apply to the court to have the matrimonial assets divided in equal shares, except under special circumstances. To do this, many spouses decide to trade off items between them or give money instead, to come up with a workable solution. Parties can agree to an unequal division, but should always have legal advice before making any decision.

It is important to develop a list of the matrimonial property that you have and figure out the value of each item or class of items (like furniture or appliances). Figuring out the value of assets can be hard to do, especially if the item has changed in value over time since the separation. There may be amounts to be subtracted from the value as well, so it is very important to have legal advice to assist you in figuring this out. Sometimes accountants or appraisers will need to be involved in figuring out the value of items.

Either spouse can file a motion for interim relief and request that a judge decide whether a matrimonial home should be listed for sale. This can be done even if the other spouse does not want to sell the home. The judge can also deal with things like:

• who will get to sign the documents needed for the sale

• who will get to make decisions about listing and sale prices

• other sale details

• how the proceeds from the sale will be paid out over the short term and

• how leftover sale proceeds will be dealt with. 

The final decision on splitting the value of items or the money gained from the sale is normally made as part of a final hearing or trial on the issue, but not always. A lawyer will be able to help you decide what to do in this situation.

You should speak to a lawyer if this is happening. There are several ways to deal with these situations, but special motions can be filed with the court to help prevent further sales and to protect the assets. 

The value of what has been sold can be considered when deciding how much each spouse is entitled to receive when the divorce or final hearing happens.

You should see a lawyer. These issues are complex and many issues need to be considered when deciding what to do, especially if there are children involved.

Yes. Death and separation are both events that can allow the right to make an application under the Matrimonial Property Act. There may be time limits on when you can apply, so getting legal assistance is very important.

Work pensions are often considered to be matrimonial property under the Matrimonial Property Act.

A lawyer can help explain:

• whether you are entitled to a portion of the work pension

• the amount you may be entitled to receive

• what pension law applies to your situation

You may also need help from other professionals, like an actuary or pension plan administrator, to make sure that you are making good decisions and know the value of the pension. The pension plan administrator is usually involved in cases where the parties need to know the value of the pension as part of their negotiations. Do not assume that you know the value of an asset without getting advice and information.

Probably, as long as the work pension is a matrimonial asset and they are considered to be a ‘spouse’ under the pension plan.

The ‘pension benefit earned during the marriage’ is wording used in most work pension division laws to describe the part of the pension that may be divided on separation or divorce. You should see a lawyer to find out how a work pension could be divided in your situation because there are many factors that may be involved in this issue. 

Pensions can only be divided if you have a written agreement - like a separation agreement - from the other party agreeing to the division, or a court order allowing the division, depending on what the pension plan requires. You may make a request for this division as part of a court application if your spouse does not agree to divide their pension.

Once you have the final agreement or court order, a formal request will have to be made to the pension plan administrator to make the division happen. The pension plan administrator may give you a lump sum equal to the share of the value of the benefits being divided. This lump sum will be transferred either to an RRSP or to a life annuity through an insurance company. A life annuity is fixed payments paid to you at regular intervals for the rest of your life.

How the pension division and pay-out will be dealt with will depend on the situation, including the type of pension plan.

Sometimes the parties can agree to exchange other assets of value instead of dividing the pension. You will need information about how much the pension benefit owed is worth if you are going to do this. The pension plan administrator may be able to give this information. You may also need the help of a professional called an actuary.

Pension division is very complicated. You should not agree to a pension division unless you have legal advice.

Canada Pension Plan (CPP) credits are dealt with differently than private work pensions.

When you work in Canada, the government keeps track of how much you pay into the Canada Pension Plan (CPP). When you retire or become disabled, you can apply to the government to start receiving your Canada Pension. The amount you get is based on how many credits you built up while you were working.

If you lived as common law partners for more than one year before you separated, or if you were married, then you can apply to split the Canada Pension Plan credits that you and your partner built up while you were together. Basically, CPP will add together how many credits you earned during that time and how many your partner earned during that time, and divide them evenly.

For more information on CPP credit splitting, click here.

You can also contact Service Canada at 1-800-277-9914; (1-800-255-4786 for TDD/TTY devices), or check out their CPP credit splitting kit.

Matrimonial debt may also be called family debt. It is debt that was acquired by either spouse or both spouses together during the marriage that was used for ordinary family matters. These may include things like:

• household expenses

• the mortgage on the family home, or

• debt used to finance a family car. 

Debts acquired after you separated from your spouse may be considered matrimonial debts if they were used to pay for necessary living expenses or to maintain the house or car, or other assets.

As a general rule, both spouses are equally responsible for a debt that is in both of their names. You may also share responsibility for debts that are only in your spouse’s name if the money was used to buy something that benefited you or your family. Examples are heating oil or a family vacation.

Usually you are not responsible for your spouse's non-matrimonial debts unless you co-signed or guaranteed them. For example, you would not usually be responsible for debts your spouse acquired to run their business, or debts acquired by your spouse before the marriage.

Debt division can be very complicated, so it is best to talk to a lawyer about your options.

For debts that you guaranteed or co-signed on behalf of your spouse, you should contact the bank or lending institution. Notify them that you and your spouse are separated and you do not consent to being responsible for any further money borrowed by your spouse.

If your spouse has access to a secondary credit card for which you are the primary card holder (i.e., your spouse has a copy of a credit card that is in your name only and for which only you are responsible for paying the bills) you should cancel the secondary credit card if you are concerned that they will use it without your permission.

You should also consider talking to your bank about any joint accounts. You may consider reducing any overdraft that your spouse has access to and requesting that a joint account be changed to require two signatures to access money in the account.

There is an application that you can make in this situation, if you are in a year-to-year or fixed term lease. For more information about this process, click here.

Nova Scotia Matrimonial Property Act

Canada Pension Plan (CPP) (Credit splitting upon divorce or separation)

Service Canada

Separating or Divorcing Couples (Canadian Bar Association) - includes link to Tax Matters Toolkit