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Division of the Family Property

Upon separation, both parties need to determine all property, including but not limited to assets, and liabilities they accumulated during their relationship. Think your matrimonial home, vacation home, car, bank accounts, etc.

The division of assets and property can be complicated and confusing. Furthermore, married spouses have different property rights under the law than common-law spouses.

Married couples are entitled to a legislated property division regime, known as “Equalization”, which is set out in the Family Law Act. The equalization process begins with each spouse calculating their respective “net family property” by totalling the value of their debts, assets, and liabilities as of the date of marriage. This number is then subtracted from the total of their debts, assets, and liabilities as of the date of separation. This process results in one spouse (with the higher net family property) owing the other spouse an equalization payment.

When calculating your net family property, the value of all types of property include but are not limited to property in and outside Ontario, stocks, pensions, land, buildings and bank accounts. There is an exception to this rule, which must be accounted for: "Excluded property” refers to gifts or inheritances received during the marriage from someone other than a spouse.

Common law spouses do not have an automatic right to equalization of net family property under the Family Law Act. Upon separation, common law spouses keep whatever assets are in their sole name. Jointly held assets, however, are usually divided equally between them. Alternatively, where one spouse holds sold title to a significant asset to which the non-title holding spouse made significant contributions (financially or otherwise), the non-title holding spouse may have a beneficial interest in that property and a right to share in its value. In order to obtain such an interest, the non-title holding spouse would have to bring a claim for either a resulting trust, constructive trust, or other equitable interest over that property.

The team understands the complexities of property issues in separation and divorce. We can ensure that your property rights to separation are recognized and protected.

If you would like to speak with one of our lawyers regarding a property issue in your family law matter, please contact us at or schedule your free initial consultation here.

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