To recognize the equal contribution of each person, the general rule is that the value of any property that you acquired during your marriage and that you still have when you separate must be divided equally, 50-50. Property that you brought with you into your marriage is yours to keep if your marriage ends. Any increase in the value of this property during your marriage must be shared.
There are some exceptions to these rules. The law allows you to keep the value of some property that you have at the end of your marriage for yourself. This property is called excluded property. It includes:
The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it.
Unlike other types of property, you do not get to keep for yourself what the house was worth at the time of your marriage.
You and your spouse can agree to a different split. Or, in some circumstances, you can ask the court to divide things differently. The court can only divide property differently in very special situations and if a 50-50 split would be extremely unfair to one of you.
The legal rules that you have to follow to calculate the value of your property and divide it between you and your spouse can be complicated. It is a good idea to consult a lawyer about how the rules apply in your case.
The next section will give you an idea of how these rules work. Remember that this is only a description of the general rules. There may be other rules and exceptions that would apply to the facts in your case.
The first thing that you and your spouse must do is to separately calculate the total value of your share of the family property according to the rules set out in the law. You must be fair and honest when you do this. If you go to court, you must prepare a full financial report of all your property, debts and income. You must swear that it is accurate.
You can calculate your share of the family property using Steps 1-4 set out below:
Step 1: Find out the value of the property you had on the day you separated
Your property is anything that is in your name or that belongs to you. You must list all your property, including property in other parts of the country and the world. For example, your list of property might include your home, a business, a car, furniture, a sound system, jewellery, savings in bank accounts and retirement savings plans, and your right to a pension, even if you will only get the pension years from now.
If you own some property together in both names, you each put half the value of the property on your list.
Q. Our calculations say I am entitled to a payment of $5,000. Do I get this in cash?
A Not necessarily. The payment can be paid in cash. It can also be made by giving you property worth $5,000. How the payment will be made is one of the things that you can arrange in your separation agreement. Or, it is one of the things the court can decide.
Q. We each went to a lawyer and got some information and advice about how the law says our family property should be divided. Now we’ve come to our own agreement about things. Can our separation agreement divide things differently from the way the law says?
A. Yes. You are free to divide your property any way you want in your separation agreement. You should each have your own lawyer look over your separation agreement before you sign it. You cannot easily change your separation agreement later.
Q. I received a car as a gift from my father. I know that the law says that if we separate, I don’t have to share the value of gifts I received during our marriage. I have decided to sell the car. Once I sell the car, is the money I get for it part of the property I must share with my spouse if we decide to separate?
A. Not necessarily. If you keep the money separate, for example, in a savings bond, so that you can always trace it to the sale of the car, it will be excluded from the property you must share at the end of your marriage.
Q. I’m so upset by everything, I cannot cope with making lists of property right now. Do I have to do this right away?
A. You have six years from the day you separated to go to court to ask for a decision on the amount of the equalization payment. If you get a divorce, you may have less time. You would have six years from the day you separated, or two years from the date your divorce is final, to go to court, whichever date comes first.
Q. I am worried that now that I’ve moved out, all our family property will disappear before we have a chance to resolve things. I think my husband might get rid of it just to keep me from sharing in its value. Is there anything I can do?
A. Yes. You can go to court and ask the court to stop your spouse from giving away the property. The court may tell him not to sell or dispose of the property or it can order that it be put in someone else’s care to protect it.
Common Law Couples
Q. We are not married but we’ve been living together for 15 years. If we split up, do we have to share the value of our property?
A. Maybe. Only married couples have an automatic legal right to half the value of family property. You can ask your spouse to pay you back for your contribution to property that your spouse owns. If your spouse does not agree, you can go to court to make your claim. But the claim will be based on another area of law, not family law. Ask a lawyer for advice.
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* source: attorney-general of Ontario website
Things to know about Family Law