Marital Property
Marital property is the property that a married couple owns before or during their marriage. It includes property belonging to one or both spouses. In particular, it is the property that the family usually uses while a couple lives together.
Marital: The word “marital” is an adjective that refers to marriage.
When a marriage ends, whether due to separation, divorce or death, the spouses must divide their property. In New Brunswick, the Marital Property Act says that each married spouse is entitled to an equal share of the property in the event of separation, divorce or death.
The information on this page explains:
- What “marital property” means
- How to divide marital property when a relationship ends
Marital property refers to a couple’s “family assets.” This includes property used for housing or transportation, or for household, educational, recreational or social needs.
Some assets are not considered marital property. This is the case, for example, with assets used for a business.
Some common examples of marital property
- The marital home. This is the place where the couple lives or has lived as a family, for example:
- An apartment
- A house
- A cabin or a camper trailer
- Household goods, such as furniture, appliances or other items used by the family in the home, like:
- A stove
- A kitchen table
- A lawn mower
- Money and financial investments
- Cars and recreational vehicles
Another example of marital property: debts
While spouses have the right to an equal share of the marital property, they also share the debts. These debts include those accumulated by either spouse during their life together.
These may include, for example:
- Mortgages
- Car loans
- Credit card balances
- Lines of credit
The Act applies to people:
- Who are planning to marry or are already married
- Whose marriage has broken down
- Who have their marriage annulled
- Who get a divorce judgement
- Whose spouse dies
In certain situations, the Marital Property Act applies to both married and unmarried couples. This is the case when a couple creates a written agreement to divide their property. The couple can make this kind of agreement at any time: either before or while they live together, or when the relationship ends.
When the couple is together
A couple can decide in advance how to share their property by signing a cohabitation agreement or a marriage contract. The Act applies once these agreements are signed. It can even apply when a marriage contract is in the process of being signed.
When the couple’s relationship ends
A couple whose relationship ends can choose to agree on how to divide their property. If they cannot agree, a person specializing in mediation can help them resolve their differences.
The Act applies when the spouses formalize their agreement by signing a contract. This document may be called a “separation agreement” or a “divorce agreement.”
Each spouse should have this document reviewed by their lawyer. However, it is not necessary to go to court to sign such a document.
After the document has been signed, it is still possible to ask the court to the agreement. Visit this web page for more information about this.
In New Brunswick, the Marital Property Act says that each spouse is entitled to an equal share of the property they acquired during the relationship.
This means that when a separating couple divides their property, both spouses have an equal right to remain in the marital home, and to use household items and other property. Both spouses are also equally responsible for the couple’s debts. However, the Court may decide otherwise.
For example, if a spouse asked the Court for their share of the marital property, the Court would assess the overall situation, including the debts. In this way, the Court could release a spouse from the obligation to repay certain debts, if the judge decides that this would be fair and equitable.
When a couple’s relationship ends, whether through separation, divorce or death, the law has general rules for how to divide the property between the spouses.
However, spouses can also decide together how to divide their property. If necessary, they can ask for the help of a mediator to resolve their disagreements. Once they reach an agreement, they can formalize it in a written agreement. It is important that each spouse have this agreement reviewed by their own lawyer.
For more information, see PLEIS NB’s information on domestic contracts and wills.
As a last resort: go to court
If the spouses cannot agree how to divide their property, either spouse can apply to family court for an order. It may be useful to consult a lawyer in this situation.
It is possible to go to court in the following situations:
- During divorce proceedings or annulment proceedings
- No more than 60 days after your divorce or annulment is final
- After separating from your spouse, even if you haven’t filed for divorce
- When one spouse dies
This last application involves applying to the Probate Court to claim your share of the property. For example, this might be necessary if your spouse had a will which mistakenly gave marital property away to another person.
Help is available on how to divide marital property.
Legal aid is available, but only in limited situations involving family matters. For more information on legal aid, please consult this link.
You can also consult the website of New Brunswick Legal Aid Services Commission.