Division of Property Lawyer in Hamilton


When a marriage ends, the equal contribution of each person to the marriage is recognized. The law provides that the value of any kind of property that was acquired by a spouse during the marriage and still exists at separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse at the date of marriage must be shared. The payment that may be owed to one of the spouses in order to effect this sharing is called an equalization payment, or an equalization of net family property.

Property Division for Married Couples

Under the Family Law Act, any property and assets acquired by either spouse during the marriage are to be shared equally (with some exceptions). This is known as “equalization”. The purpose of property division laws is to provide each partner with an equal share of the net value of any property jointly acquired from the date of marriage to the date of separation. The date of separation becomes very important to the equalization process. What appears to be a relatively straightforward process can be complicated by several factors. Some properties might be difficult to value, including complicated assets such as international property or a family business. Additionally, inheritances and gifts by a third party to one of the spouses are generally not included in an equalization determination.

Matrimonial House

An important asset that needs to be dealt with during the separation process is the matrimonial home. Some very specific factors need to be in effect for a property to qualify as a matrimonial home. For instance, a property must be located in Alberta in order to qualify under the MPA. That means that out-of-province summer homes won’t qualify. A home must be owned by one or both parties. That means that a home belonging to a parent or family member will not qualify.  There are also special criteria involved when a Court decides as to which spouse can stay in the matrimonial home until the property is sold or one of the spouses buys out the other spouse.  The availability of other accommodations is one of the criteria.  However, the financial position of the spouses, as well as children’s needs, will also be considered by the Court when deciding as to which spouse gets exclusive possession of the matrimonial home.

Equalizing the Net Position

The legislated division of property division for married couples regime is applicable upon separation, divorce, and other triggering events. Under the law a marriage is considered to be an equal partnership between the spouses. The entries of the two individual statements are then synced into a single format to calculate the net financial position of each spouse. The next step to determine the property division of married couples is to divide one half of any difference between the totals. The difference will be paid by the spouse with the greater net financial position to the other spouse subject to any allowable exclusions and prior valid domestic contracts. This half of the difference becomes the equalization payment, so that each spouse leaves the marriage with exactly the same net position.

Here’s an easy example:

If the husband has a net worth of $200,000 and the wife has a net worth of $100,000, the husband must pay $50,000 to the wife. This $50,000 is half of the value of the difference in the net worth of the two spouses in this example. Specifically, deduct the wife’s net worth of $100,000 from the husband’s net worth of $200,000 and the result is $100,000. Then you divide the $100,000 by 2 which equals $50,000. This $50,000 is called an equalization payment.

This example is a very simple case. You need proper legal advice from an experienced family law and divorce lawyer to make sure you calculate or determine the proper equalization payment in your case.

Property Division for Common-Law Couples

Unlike married couples, common-law couples (couples who live together but are not married) are not entitled to the equalization of their family property. The provisions in Ontario’s Family Law Act (FLA) that govern the division of property apply only to married couples, not to common-law couples.If two people have been living together for some time, then sorting out who bought what or who brought what into the home can be complicated; but the general rule of thumb is:

  • Items purchased during the relationship belong to the person who paid for them
  • Items purchased jointly will usually be divided

Claims through Court

If you believe you made a contribution to the “acquisition, preservation or maintenance of property” through financial or non-financial assistance, you may be able to make a case for compensation even if your name is not on the legal title. There are three types of claims you could make to the courts: resulting trust, constructive trust, and unjust enrichment. Each claim has certain requirements that help the courts determine if you  benefited at your expense. You could be awarded a share of the property based on the value of your contribution.

Get a Legal Help

No two property disputes are the same, and our divorce lawyers therefore take care to deliver individualized representation to every client we assist. With our considerable family law experience, we can help you develop creative solutions for your property dispute, to protect your concerns.

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1. Planning The Case

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Evaluate Situation

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