The information provided in this brochure is of a general nature and is not intended to be taken as the giving of an opinion by the law firm of Murphy Collette Murphy or any of its members. Specific advice should be sought on particular situations from your lawyer. © 1994 -2007 Henry J. Murphy

---

1. What is marital property?

Marital property consists of assets which are owned by one or both spouses and are ordinarily used by them and their children while they are living together as husband and wife.

Certain assets, such as those used for business are not always included in marital property and division of these assets will depend upon the contribution of each spouse to the asset or to the ability of the other spouse to acquire or maintain the asset.

The most common types of marital property that are subject to division are the marital home, or other real property used by the family, such as a cottage, household goods, money, personal investments, pension benefits, automobiles and recreational vehicles.

2. How can you get a share of marital property?

A share of marital property can be obtained by consent through a Separation Agreement or Domestic Contract or where the parties cannot agree, by a court order.

3. Division of marital property on a breakdown of marriage.

Under the Marital Property Act, New Brunswick law recognizes that the contributions of husband and wife to a marriage are of equal importance and in general each spouse is entitled to an equal share of marital property unless special circumstances apply.

You are also equally responsible for a share of marital debts. Marital debts include those debts which were incurred by you and/or your spouse while you were living together.

The final property settlement may be set up so that one spouse does not actually make payments on the marital debts, however, that person's share of debt is still accounted for in the division of marital property between the spouses.

4. Common law rights to marital property.

There is a right to the division and sharing of property which you have made a contribution to during a common law relationship. However, the court in determining the rights of common law spouses does not have specific legislation for interpreting those rights and instead must rely on principles of equity or fairness. For a division of property, a common law spouse must either negotiate an agreement with their partner or apply to the court. A party must show that during the period of cohabitation, the partners accumulated assets together and that it would be unjust or unfair for one partner to retain sole ownership of the asset or to exclude the other partner from an equal sharing of the asset. The division of property between common law spouses is determined by the length of their cohabitation and the nature of each partial contribution to the assets and debts.

5. Special rights to marital home and household goods.

Under the Marital Property Act both spouses have an equal right to stay in the marital home and use the household goods until a court declares otherwise. Your spouse cannot dispose of a marital home without your consent or without a court order and if the home is wrongly disposed of, the court may be able to compensate you for your share, or in some circumstances may be able to set aside a transaction in order to help you get the home back. You are also entitled to get an equal share of any money made from the sale of a marital home.

6. Exclusive possession of marital home.

In certain circumstances, the court will award sole possession of the home to a spouse if it can be determined that the spouse has custody of the children and it is in the children's best interest to reside in the marital home, especially in circumstances where adequate housing cannot be obtained for a price similar to the cost of maintaining the marital home.

7. What happens if a spouse begins selling assets?

In certain circumstances, you can apply to the court to stop your spouse from disposing of the marital home or household goods. You can also apply to have a court order that a spouse stop disposing of household goods and assets without your consent. If a spouse does dispose of household assets and goods, the value of items sold can be accounted for and considered by a court in making a final division of property.

8. What property does not have to be shared on separation or divorce?

Generally business property, inheritance, gifts and property acquired before cohabitation or after separation are not subject to division. This issue must be determined in light of the circumstances of each particular case.

9. Summary

It is wise to seek legal advice on any breakdown of a marriage or a common law relationship where there are jointly owned assets which were contributed to or acquired by you and/or your spouse while you were living together.

© 1996, 2001, 2007 Henry J. Murphy