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Matrimonial Property

A related issue in most divorce proceedings is the division of family assets. This issue is actually governed by the Matrimonial Property Act, not the Divorce Act. Each province has its own legislation governing the division of matrimonial property. Unmarried couples do not have a right to equalize the property acquired during the relationship. However they can seek a constructive trust in one or more of the assets of their former partner if they can prove they contributed to their former partner’s acquisition of assets during the common law relationship.

A common misconception is that a wife gets “half” of her husband’s assets in a divorce. This is incorrect on many levels. The court will examine each spouse’s increase in net worth (assets minus debts) and equalize the difference. An equal division of property is presumed and any party seeking an unequal distribution will have to prove that their spouse improvidently depleted assets. That said, which assets are subject to division, whether or not certain assets are exempt from equalization, and what value is assigned to the assets, can be complicated and it is best to contact experienced counsel to deal with these issues.

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