Marital Property
Marital property is the property that a married couple owns before or during their marriage. It includes all property belonging to one or both spouses. In particular, it is the property that the family usually uses while a couple lives together.
Marital: The word “marital” is an adjective that refers to marriage.
When a marriage ends, whether due to separation, divorce or death, the property must be divided between the spouses. In New Brunswick, the Marital Property Act says that each spouse is entitled to an equal share of the property in the event of separation, divorce or death.
This page explains:
- What “marital property” means
- How to divide marital property when a relationship ends
Marital property is, in a way, a couple’s “family assets.” They can be used for housing or transportation, or for household, educational, recreational or social needs.
Some assets are not considered marital property. This is the case, for example, with those used for a business.
Some common examples of marital property
- The marital home, the place where the couple lives or has lived as a family, for example:
- an apartment
- a house
- A cabin or a camper trailer
- Household goods, such as furniture, appliances or other items used by the family in the home, like:
- a stove
- a kitchen table
- A lawn mower
- Money and financial investments
- Cars and other recreational vehicles
Another example of marital property: debts
While spouses are entitled to an equal share of the marital property, they also share the debts. These debts include those accumulated by either spouse during their life together.
These may include, for example:
- Mortgages
- Car loans
- Credit card balances
- Lines of credit
The Act applies to people:
- Who are planning to marry or are already married
- Whose marriage has broken down
- Who obtain a marriage annulment
- Who obtain a divorce decree
- Whose spouse dies
In certain situations, the Marital Property Act applies to both married and unmarried persons. This is the case when the couple comes to an agreement on the division of their property.
An agreement can be made at different stages in a couple’s life, either before or during the conjugal relationship, or when it ends.
When the couple is together
A couple can decide in advance how to share their property by signing a cohabitation agreement or a marriage contract. The Act applies once these agreements are signed. It can even apply when a marriage contract is in the process of being signed.
When the couple’s relationship ends
A couple whose relationship ends can choose to agree on how to divide their property. If they cannot agree, a person specializing in mediation can help them resolve their differences.
The Act applies when the spouses formalize their agreement by signing a separation document. This document may be called a “separation agreement” or a “divorce agreement.”
Each spouse should have this document reviewed by their lawyer. However, it is not necessary to go to court to sign such a document.
After the document has been signed, it is still possible to ask the court to modify the division of property provided for in the document. Visit this web page for more information on this subject.
In New Brunswick, the Marital Property Act provides that each spouse is entitled to an equal share of the property acquired during the conjugal relationship. In fact, the Act considers that a couple has joint responsibilities that are shared equally between the spouses.
This means that when the assets are divided, both spouses have an equal right to remain in the matrimonial home and to use household items and other property. Both spouses also have joint responsibility for the couple’s debts. However, the Court may decide otherwise.
For example, if a spouse asked the Court for their share of the matrimonial property, the Court would assess the overall situation, including the debts. In this way, it could release a spouse from the obligation to repay certain debts, if it deemed that this would be fair and equitable.
When a couple’s relationship ends, whether through separation, divorce or death, the law already provides for how to divide the property between the spouses.
However, spouses can also decide together how to divide their property. If necessary, they can ask for the help of a mediator to resolve their disagreements. Once they reach an agreement, they can formalize it in a separation agreement. It is important that each spouse have this agreement reviewed by their own lawyer.
As a last resort: go to court
If the spouses cannot agree on the division of property, they will have to go to the Family Court in New Brunswick. It may be useful to consult a lawyer in this situation.
It is possible to go to court in the following situations:
During divorce or annulment of marriage
In the event of divorce or annulment of marriage, you can apply for division:
-
- Before the divorce petition or annulment of the marriage.
- A maximum of 60 days after the divorce or annulment of the marriage.
During separation
If the marriage is considered a failure, it is possible to apply to the Court even without formal separation.
Upon the death of one’s spouse
In the event of death, a person may have to apply to the Probate Court to claim their share of the property. This situation should be considered when the spouse dies bequeathing their property to another person.
Help is available on how to divide marital property.
Legal aid is available, but only in limited situations involving family matters. For more information on legal aid, please consult this link.
You can also consult the website of New Brunswick Legal Aid Services Commission.