Basics of Family Law
Division of Property: Who Gets What?
I am married: what are my rights?
When married couples separate or divorce, the right to divide property is covered by the provincial Family Relations Act. The Family Relations Act says that each spouse has a right to half of the family assets, unless that would be unfair.
A family asset is anything owned by you and your spouse together, or by either of you separately, and ordinarily used for a family purpose. The most common examples of family assets are the family home and its contents and the family car. Other family assets might include bank accounts or investments, such as term deposits, stocks and bonds, and RRSPs. Pensions earned by either you or your spouse during your marriage are also family assets.
Personal items - such as jewellery - that were used by only one of you during the marriage will not usually be included as family assets, nor will any property you might buy after separation, unless you use a family asset, or money received from selling a family asset, to buy it.
A business owned by one spouse may be a family asset, if the other spouse contributed in some way, either directly or indirectly, to it. A direct contribution might be money or labour; an indirect contribution might be taking care of family and household duties so that your spouse could concentrate on the business.
If you agree
If you and your spouse agree to a 50-50 split of your family assets - or you both agree that a different division is fair - then you can go ahead and divide your property without having to go to court.
We recommend that you put your agreement in writing and that you both sign it. (The agreement will usually form part of a larger, written separation agreement that covers other issues as well, such as child custody.) That way, if you run into difficulty later on - your former spouse refuses to give you the car as agreed, for example - you can use your signed copy to show what you both agreed to.
If you do not agree
If you and your spouse cannot agree on how to divide your family assets, then you will need to go to the Supreme Court to ask for a judgment. (The Provincial Court does not handle division of property.)
To decide whether 50-50 is fair or unfair, the judge will look at several things, including how long your marriage lasted, how long you and your spouse have been separated, and whether any of the property came to either of you as an inheritance or gift.
To find out more about the Supreme Court process and applying for a court order, please see our web site section called If You Go to Supreme Court.
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