Matrimonial Property Act

Link to law: http://nslegislature.ca/legc/statutes/matrimon.htm
Published: 2016-01-05

Matrimonial Property Act

amended 1995-96, c. 13, s. 83size>

CHAPTER 275 OF THE REVISED STATUTES, 1989

An Act to Reform the Law Respecting

the Property of Married Persons
WHEREAS it is desirable to encourage and strengthen the role of thefamily in society;
AND WHEREAS for that purpose it is necessary to recognize thecontribution made to a marriage by each spouse;

AND WHEREAS in support of such recognition it is necessary toprovide in law for the orderly and equitable settlement of the affairs ofthe spouses upon the termination of a marriage relationship;

AND WHEREAS it is necessary to provide for mutual obligations infamily relationships including the responsibility of parents for theirchildren;

AND WHEREAS it is desirable to recognize that childcare, householdmanagement and financial support are the joint responsibilities of thespouses and that there is a joint contribution by the spouses, financial andotherwise, that entitles each spouse equally to the matrimonial assets:

Short title
1 This Act may be cited as the Matrimonial Property Act. R.S.,c. 275, s. 1.

Interpretation
2 In this Act,

(a) "business assets" means real or personal property primarilyused or held for or in connection with a commercial, business,investment or other income-producing or profit-producing purpose,but does not include money in an account with a chartered bank,savings office, loan company, credit union, trust company orsimilar institution where the account is ordinarily used for shelteror transportation or for household, educational, recreational, socialor aesthetic purposes;

(b) "child" means a child of both spouses born within or outsidethe marriage and includes

(i) a person adopted by both spouses, and

(ii) a person whom both spouses have demonstrated a settledintention to treat as a child of the marriage,

but does not include a person placed with them as foster parents forconsideration by a person having lawful custody;

(c) "court" means the Trial Division of the Supreme Courtunless the context otherwise requires;

(d) "dwelling" includes a house, condominium, cottage, mobilehome, trailer or boat occupied as a residence;

(e) "marriage contract" means a marriage contract pursuant toSection 23;

(f) "separation agreement" means an agreement in writingbetween spouses who are living or intend to live separate andapart;

(g) "spouse" means either of a man and woman who

(i) are married to each other,

(ii) are married to each other by a marriage that is voidable andhas not been annulled by a declaration of nullity, or

(iii) have gone through a form of marriage with each other, ingood faith, that is void and are cohabiting or have cohabited withinthe preceding year,

and for the purposes of an application under this Act includes awidow or widower. R.S., c. 275, s. 2.

"matrimonial home" defined
3 (1) In this Act, "matrimonial home" means the dwelling and realproperty occupied by a person and that persons spouse as their familyresidence and in which either or both of them have a property interestother than a leasehold interest.

Property only partly used as matrimonial home
(2) Where property that includes a matrimonial home is used for otherthan residential purposes, the matrimonial home only includes thatportion of the property that can reasonably be regarded as necessary forthe use and enjoyment of the family residence.

Home owned by corporation
(3) The ownership of a share or an interest in a share of a corporationentitling the owner to the occupation of a dwelling owned by thecorporation is deemed to be an interest in the dwelling for the purposesof this Section.

More than one matrimonial home
(4) A person and the persons spouse may have more than onematrimonial home. R.S., c. 275, s. 3.

"matrimonial assets" defined
4 (1) In this Act, "matrimonial assets" means the matrimonialhome or homes and all other real and personal property acquired byeither or both spouses before or during their marriage, with the exceptionof

(a) gifts, inheritances, trusts or settlements received by onespouse from a person other than the other spouse except to theextent to which they are used for the benefit of both spouses ortheir children;

(b) an award or settlement of damages in court in favour of onespouse;

(c) money paid or payable to one spouse under an insurancepolicy;

(d) reasonable personal effects of one spouse;

(e) business assets;

(f) property exempted under a marriage contract or separationagreement;

(g) real and personal property acquired after separation unlessthe spouses resume cohabitation.

Damages or insurance proceeds
(2) Notwithstanding clauses (b) and (c) of subsection (1), an award orsettlement of damages in court or money being paid or payable under aninsurance policy is a matrimonial asset to the extent that it is made, paidor payable in respect of a matrimonial asset.

Resumption of cohabitation
(3) For the purposes of clause (g) of subsection (1), spouses aredeemed not to have resumed cohabitation where there has been aresumption of cohabitation by the spouses during a period or periods inaggregate not exceeding more than ninety days with reconciliation as itsprimary purpose.

Shares of corporation
(4) Where property owned by a corporation would, if it were ownedby a spouse, be a matrimonial asset, then shares in the corporation ownedby the spouse having a market value equal to the value of the benefit thespouse has in respect of that property are matrimonial assets. R.S., c. 275,s. 4.

Application of Act to spouses
5 (1) This Act applies to spouses who entered into marriage beforeor after the first day of October, 1980.

Application of Act to property
(2) This Act applies to real and personal property whether acquired bya spouse before, on or after the first day of October, 1980.

Where proceeding pending
(3) This Act applies where a proceeding to determine the rights asbetween spouses in respect of real or personal property has beencommenced and not finally decided before the first day of October, 1980.

Where divorce final before October 1, 1980
(4) This Act does not apply to persons who have received a decreeabsolute of divorce before the first day of October, 1980.

Where existing agreement by spouses
(5) This Act does not apply to spouses in relation to real and personalproperty provided for in an agreement entered into by those spousesbefore the first day of October, 1980. R.S., c. 275, s. 5.

Equal right of possession of matrimonial home
6 (1) A spouse is equally entitled to any right of possession of theother spouse in a matrimonial home.

Termination of right of possession
(2) Subject to an order of the court under this or any other Act andsubject to a separation agreement that provides otherwise, a right of aspouse to possession by virtue of subsection (1) ceases upon the spouseceasing to be a spouse. R.S., c. 275, s. 6.

Designation of matrimonial home
7 (1) Spouses may designate, by instrument in writing executed byboth spouses, any property as their matrimonial home and following theregistration of such a designation in the registry of deeds for theregistration district in which the property is located any other propertythat otherwise would be a matrimonial home and is not so designatedceases to be a matrimonial home.

Change or cancellation
(2) Spouses may, by instrument in writing executed by both spousesand registered in the registry of deeds, change or cancel a designationmade under subsection (1).

Proof of execution
(3) A designation, change or cancellation of a designation made underthis Section shall be proved as required by the Registry Act.

Deemed cancellation
(4) A designation made under this Section is deemed to be cancelledupon the registration of

(a) a court order cancelling the designation;

(b) proof of death of one of the spouses; or

(c) a conveyance disposing of the property designated as amatrimonial home.

Effect of cancellation
(5) Upon the cancellation of a designation made under this Section,property rights as between spouses shall be determined as if thedesignation had never been made. R.S., c. 275, s. 7.

Disposition of matrimonial home
8 (1) Neither spouse shall dispose of or encumber any interest ina matrimonial home unless

(a) the other spouse consents by signing the instrument ofdisposition or encumbrance, which consent shall not beunreasonably withheld;

(b) the other spouse has released all rights to the matrimonialhome by a separation agreement or marriage contract;

(c) the proposed disposition or encumbrance is authorized bycourt order or an order has been made releasing the property as amatrimonial home; or

(d) the property is not designated as a matrimonial home and aninstrument designating another property as a matrimonial home ofthe spouses is registered and not cancelled.

Disposition contrary to subsection (1)
(2) Where a spouse disposes of or encumbers an interest in amatrimonial home contrary to subsection (1), the transaction may be setaside by the other spouse upon an application to the court unless theperson holding the interest or encumbrance acquired it for valuableconsideration, in good faith and without notice that the property was amatrimonial home.

Affidavit respecting disposition
(3) An affidavit of the person making a disposition or encumbranceverifying that

(a) the person is not a spouse at the time of making thedisposition or encumbrance;

(b) the property disposed of or encumbered has never beenoccupied by the person and the persons spouse as theirmatrimonial home; or

(c) the spouse of that person has released all rights to thematrimonial home by a separation agreement, marriage contract ordesignation made pursuant to this Act,

is, unless the property is designated or the person to whom thedisposition or encumbrance is made had notice to the contrary, deemedto be sufficient proof that the property is not a matrimonial home. R.S.,c. 275, s. 8.

Notice to both spouses
9 (1) Where a person is proceeding to realize upon a lien,encumbrance or execution or exercises a forfeiture against property thatis a matrimonial home, the spouse who has a right of possession by virtueof this Act has the same right of redemption or relief against forfeitureas the other spouse has and is entitled to any notice respecting the claimand its enforcement or realization to which the other spouse is entitled.

Service of notice
(2) Any notice to which a spouse is entitled by virtue of subsection (1)is deemed to be sufficiently served if served personally or by registeredmail addressed to the person, upon whom notice is to be served, at thepersons usual or last known address or, where none, the address of thematrimonial home, and, where notice is served by mail, the service isdeemed to have been made on the fifth day after the day of mailing.

Application of payment by spouse
(3) Where a spouse makes any payment by way of or on account ofredemption or relief against forfeiture under the right conferred bysubsection (1), the payment shall be applied in satisfaction of the claimgiving rise to the lien, encumbrance, execution or forfeiture.

Proceeding in absence of spouse
(4) Notwithstanding any other Act, where a person who commencesa proceeding to realize upon a lien, encumbrance or execution or toexercise a forfeiture does not have sufficient particulars of a spouseentitled under subsection (1) for the purposes of the proceeding and anotice given under subsection (2) is not responded to, the proceeding maycontinue in the absence of the spouse and without regard to the interestof the spouse and any final order in the proceeding terminates the rightsof the spouse under this Section. R.S., c. 275, s. 9.

Powers of court
10 (1) The court may by order, on the application of a spouse orany other person having an interest in property,

(a) determine if all or part of the property is a matrimonialhome;

(b) authorize the disposition or encumbrance of a matrimonialhome where the spouse whose consent is necessary

(i) cannot be found or is not available,

(ii) is not capable of giving consent, or

(iii) is unreasonably withholding consent,

subject to such terms and conditions as the court considersappropriate;

(c) dispense with the giving of a notice to a spouse required bythis Act;

(d) direct the setting aside of any disposition or encumbrance ofan interest in a matrimonial home and the revesting of the interestor any part of the interest upon such terms and subject to suchconditions as the court considers appropriate.

Variation of order under clause (1)(b)
(2) The court may, on the application of a person subject to an orderunder clause (b) of subsection (1), discharge, vary or suspend any termsand conditions imposed in the order. R.S., c. 275, s. 10.

Powers of court respecting matrimonial home
11 (1) Notwithstanding the ownership of a matrimonial home andits contents, the court may by order, on the application of a spouse,

(a) direct that one spouse be given exclusive possession of amatrimonial home, or part thereof, for life or for such lesserperiod as the court directs and release any other property that is amatrimonial home from the application of this Act;

(b) direct the spouse to whom exclusive possession is givenunder clause (a) to pay such periodic or other payments to theother spouse as is prescribed in the order;

(c) direct that the contents of a matrimonial home that arematrimonial assets, or any part thereof, remain in the home for theuse of the person given possession;

(d) determine the obligation to repair and maintain thematrimonial home and to pay for other liabilities arising in respectof the matrimonial home;

(e) authorize the disposition or encumbrance of the interest of aspouse in a matrimonial home who has not been granted exclusivepossession;

(f) where a false affidavit is made respecting a matrimonialhome or where a matrimonial home or any interest therein isdisposed of contrary to the provisions of this Act, direct

(i) the person who made the false affidavit,

(ii) any person who knew at the time the affidavit was false andthereafter conveyed the property, or

(iii) any person who improperly disposed of the matrimonialhome or interest therein,

to substitute other real property for the matrimonial home or to setaside money or security to stand in place of the matrimonial home,subject to such terms and conditions as the court considersappropriate.

Preservation of other remedy
(2) The authority of the court under clause (f) of subsection (1) is inaddition to and not in substitution for any other remedy at law.

Application by child for matrimonial home
(3) Where a surviving spouse does not reside in the matrimonial homeat the time of the death of the other spouse and a child resides in thatmatrimonial home at that time, the court may, on the application of thechild, direct that the child be given possession of the matrimonial home

(a) until the child reaches the age of majority; or

(b) while the child is attending a postsecondary educationalinstitution, until the age of twenty-four years,

and the court may make such other orders under subsection (1) as itdeems appropriate.

Conditions for order for possession
(4) The court may only make an order for possession of thematrimonial home under subsection (1) or (3) where, in the opinion ofthe court,

(a) other provision for shelter is not adequate in thecircumstances; or

(b) it is in the best interests of a child to make such an order.

Variation of order
(5) Where the court is satisfied that there has been a material changein the circumstances, it may discharge, vary or suspend an order madeunder clause (a), (b), (c) or (d) of subsection (1) or subsection (3), uponthe application of a party to the original application. R.S., c. 275, s. 11.

Application for division of matrimonial assets
12 (1) Where

(a) a petition for divorce is filed;

(b) an application is filed for a declaration of nullity;

(c) the spouses have been living separate and apart and there isno reasonable prospect of the resumption of cohabitation; or

(d) one of the spouses has died,

either spouse is entitled to apply to the court to have the matrimonialassets divided in equal shares, notwithstanding the ownership of theseassets, and the court may order such a division.

Limitation period for surviving spouse
(2) An application for the division of matrimonial assets shall be madeby a surviving spouse within six months after probate or administrationof the estate of the deceased spouse is granted by a court of probate andnot thereafter.

Extension of time
(3) Notwithstanding subsection (2), where the court is satisfied that thesurviving spouse did not know of the grant of probate or administrationor did not have an adequate opportunity to make such an application, thecourt may extend the time for making the application but such anapplication shall relate only to matrimonial assets remaining undistributedat the date of the application.

Right of surviving spouse as additional right
(4) Any right that the surviving spouse has to ownership or division ofproperty under this Act is in addition to the rights that the survivingspouse has as a result of the death of the other spouse, whether theserights arise on intestacy or by will. R.S., c. 275, s. 12.

Factors considered on division
13 Upon an application pursuant to Section 12, the court may make adivision of matrimonial assets that is not equal or may make a divisionof property that is not a matrimonial asset, where the court is satisfiedthat the division of matrimonial assets in equal shares would be unfair orunconscionable taking into account the following factors:

(a) the unreasonable impoverishment by either spouse of thematrimonial assets;

(b) the amount of the debts and liabilities of each spouse and thecircumstances in which they were incurred;

(c) a marriage contract or separation agreement between thespouses;

(d) the length of time that the spouses have cohabited witheach other during their marriage;

(e) the date and manner of acquisition of the assets;

(f) the effect of the assumption by one spouse of anyhousekeeping, child care or other domestic responsibilities for thefamily on the ability of the other spouse to acquire, manage,maintain, operate or improve a business asset;

(g) the contribution by one spouse to the education or careerpotential of the other spouse;

(h) the needs of a child who has not attained the age of majority;

(i) the contribution made by each spouse to the marriage and tothe welfare of the family, including any contribution made as ahomemaker or parent;

(j) whether the value of the assets substantially appreciatedduring the marriage;

(k) the proceeds of an insurance policy, or an award of damagesin tort, intended to represent compensation for physical injuries orthe cost of future maintenance of the injured spouse;

(l) the value to either spouse of any pension or other benefitwhich, by reason of the termination of the marriage relationship,that party will lose the chance of acquiring;

(m) all taxation consequences of the division of matrimonialassets. R.S., c. 275, s. 13; revision corrected.

Statement of particulars of property
14 (1) When application is made for division of matrimonial assets,each spouse shall file with the court and serve on each other a statement,verified by affidavit, disclosing particulars of all property of that spouse.

Manner and form of statement
(2) A statement pursuant to subsection (1) shall be made in the mannerand form required by the rules of the Supreme Court.

Order for confidentiality
(3) Where, in the opinion of the court, the public disclosure of anyinformation contained in a statement filed under subsection (1) wouldconstitute a hardship to a spouse, the court may order that the statementand any cross-examination thereon be treated as confidential and not formpart of the public record. R.S., c. 275, s. 14.

Powers of court upon division
15 On an application for the division of matrimonial assets, the courtmay order

(a) that the title to any specified property granted by the courtto a spouse be transferred to or held in trust for that spouse forsuch period, or absolutely, as the court may decide;

(b) the partition or sale of any property;

(c) that payment be made out of the proceeds of a sale orderedunder clause (b) to one or both spouses, and the amount thereof;

(d) that any property forming part of the share of either or bothspouses be transferred to or held in trust for a child to whom aspouse must provide support;

(e) that either or both spouses give such security, including acharge on property, that the court orders, for the performance ofany order made under this Section;

(f) that one spouse pay to the other spouse such amount as is setout in the order for the purpose of providing for the division of theproperty,

and make such other orders and directions as are ancillary thereto. R.S.,c. 275, s. 15.

Determination of question between spouses
16 (1) Either spouse may apply to the court for the determinationof any question between the spouses as to

(a) the ownership or right to possession of any particularproperty;

(b) whether property is a matrimonial asset or a business asset,

except where an application has been made and not determined or anorder has been made respecting the property under this Act.

Powers of court under subsection (1)
(2) Where an application is made under subsection (1), the court may

(a) make a declaration as to the ownership or right of possessionin the property;

(b) make a declaration as to whether the property is amatrimonial asset or a business asset;

(c) where the property has been disposed of, order that a spousepay compensation for the interest of the other spouse;

(d) order that the property be partitioned or sold;

(e) order that either or both spouses give such security,including a charge on property, that the court orders, for theperformance of any order under this Section,

and may make such other orders and directions as are ancillary thereto. R.S., c. 275, s. 16.

Sale of security
17 The court may, on application, direct the sale of property chargedas security under this Act upon such terms and conditions as the courtconsiders appropriate. R.S., c. 275, s. 17.

Contribution to business asset by spouse
18 Where one spouse has contributed work, money or moneys worthin respect of the acquisition, management, maintenance, operation orimprovement of a business asset of the other spouse, the contributingspouse may apply to the court and the court shall by order

(a) direct the other spouse to pay such an amount on such termsand conditions as the court orders to compensate the contributingspouse therefor; or

(b) award a share of the interest of the other spouse in thebusiness asset to the contributing spouse in accordance with thecontribution,

and the court shall determine and assess the contribution without regardto the relationship of husband and wife or the fact that the actsconstituting the contribution are those of a reasonable spouse of that sexin the circumstances. R.S., c. 275, s. 18.

Interim order
19 The court may make such interim order as it considers necessaryfor the proper application of this Act, pending the bringing or dispositionof an application under this Act. R.S., c. 275, s. 19.

Registration of orders
20 (1) An order made under this Act respecting real property maybe registered in the registry of deeds in the registration district in whichthe property is located and, where it is not so registered, it does notaffect the acquisition of an interest in that real property by a person ingood faith without notice of the order.

(2) A notice of an order made under this Act respecting personal property in the form prescribed by regulations made pursuant to the Personal Property Security Act may be filed in the Personal Property Registry and, where it is not so filed, the order does not affect the acquisition of an interest in that personal property by a person in good faith without notice of the order.

(3) Where an order relates to goods that are designated by regulations made pursuant to the Personal Property Security Act as serial numbered goods and a notice does not describe those goods by serial number, the notice is deemed not to be filed pursuant to subsection (2) with respect to those goods. R.S., c. 275, s. 20; 1995-96, c. 13, s. 83.

Presumption respecting ownership between spouses
21 (1) The rule of law applying a presumption of advancement inquestions of the ownership of property as between husband and wife isabolished and in place thereof the rule of law applying a presumption ofa resulting trust shall be applied in the same manner as if they were notmarried, except that

(a) the fact that property is placed or taken in the name ofspouses as joint tenants is prima facie proof that each spouse isintended to have on a severance of the joint tenancy a one-halfbeneficial interest in the property; and

(b) money on deposit in a chartered bank, savings office, loancompany, credit union, trust company or other similar institutionin the name of both spouses shall be prima facie proof that themoney is on deposit in the name of the spouses as joint tenants forthe purposes of clause (a).

Application of subsection (1)
(2) Subsection (1) applies notwithstanding that the event giving rise tothe presumption occurred before the first day of October, 1980. R.S.,c. 275, s. 21.

Conflict of laws
22 (1) The division of matrimonial assets and the ownership ofmoveable property as between spouses, wherever situated, are governedby the law of the place where both spouses had their last commonhabitual residence or, where there is no such residence, by the law of theProvince.

Immovable property
(2) The ownership of immoveable [immovable] property as betweenspouses is governed by the law of the place where that property issituated.

Consideration of value of immovable property
(3) Notwithstanding subsection (2), where the law of the Provincegoverns the division of assets, the value of the immoveable [immovable]property wherever situated may be taken into consideration for thepurposes of a division of assets. R.S., c. 275, s. 22.

Marriage contract
23 A man and a woman may enter into an agreement, to be known asa marriage contract, before their marriage or during their marriage whilethey are cohabiting, in which they agree on their respective rights andobligations

(a) under the marriage;

(b) upon separation;

(c) upon the annulment or dissolution of the marriage;

(d) upon the death of either spouse. R.S., c. 275, s. 23.

Contract or agreement in writing
24 A marriage contract or a separation agreement is void unless it isin writing and is signed by the parties and witnessed. R.S., c. 275, s. 24.

Capacity of minor
25 A minor who has capacity to contract marriage has capacity toenter into a marriage contract or a separation agreement that is approvedby the court, whether the approval is given before or after the contractis entered into. R.S., c. 275, s. 25.

Best interests of child
26 The court may disregard any provision of a marriage contract orseparation agreement affecting a child where, in the opinion of the court,it is in the best interests of the child to do so. R.S., c. 275, s. 26.

Agreement by executor or administrator
27 (1) An executor or administrator of a deceased spouse may enterinto an agreement with a surviving spouse as to the ownership or divisionof property under this Act.

If surviving spouse is executor or administrator
(2) Where an executor or administrator of a deceased spouse is thesurviving spouse, the court may appoint a person to act in the place ofthe executor or administrator under subsection (1). R.S., c. 275, s. 27.

Enforcement on death
28 A marriage contract or a separation agreement, or a provisionthereof, that has its effect on the death of one of the parties thereto maybe enforced by or against the estate of the deceased. R.S., c. 275, s. 28.

Harsh or fraudulent contract or agreement
29 Upon an application by a party to a marriage contract or separationagreement, the court may, where it is satisfied that any term of thecontract or agreement is unconscionable, unduly harsh on one party orfraudulent, make an order varying the terms of the contract or agreementas the court sees fit. R.S., c. 275, s. 29.

Arbitration
30 (1) Parties to a marriage contract or separation agreement may,where both persons consent, refer any question as to their rights underthis Act or the contract or agreement for determination by arbitration andthe Arbitration Act then applies.

Order of court
(2) A copy of an arbitration award made pursuant to this Section,certified by the arbitrator to be a true copy, may be made an order of thecourt by filing it with the prothonotary of the court who shall enter thesame as a record and it thereupon becomes and is an order of the courtand is enforceable as such. R.S., c. 275, s. 30.

Enforcement of order or award for possession
31 It is the duty of a peace officer to enforce a court order made, oran arbitration award filed with the court, pursuant to this Act as it relatesto peaceable possession of residential premises where

(a) the peace officers assistance is requested by a person namedin the order; and

(b) the peace officer is satisfied as to the existence of the courtorder or court record of the arbitration award. R.S., c. 275, s. 31.

Regulations respecting forms
32 (1) The Governor in Council may make regulations respectingforms to be used for the purpose of this Act.

Regulations Act
(2) The exercise by the Governor in Council of the authority insubsection (1) shall be regulations within the meaning of the RegulationsAct. R.S., c. 275, s. 32.

Dower and courtesy abolished
33 (1) Dower and curtesy [courtesy] at common law are abolished.

Existing right to dower preserved
(2) This Section does not apply in respect of a right to dower wherethe husband died before the first day of October, 1980.

Dower indemnity
(3) Where money has been paid into court as an indemnity in respectof a right to dower and the husband is alive on the first day of October,1980, the husband of the person in respect of whose dower right themoney was paid into court is entitled to be paid the money uponapplication to the prothonotary of the court, without order. R.S., c. 275,s. 33.
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