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Marital Property

What is marital property?
How can I get a share of marital property?
When can I ask the court to divide our marital property?
Is marital property always divided equally?
What about our debts?

What is marital property?

Under the Marital Property Act, marital property consists of family assets that a married couple acquired either before or during the marriage.  Family assets include property owned by one or both spouses, ordinarily used by them and their children while they are living together for shelter or transportation, or for household, educational, recreational or social purposes.

The most common types of marital property are the marital home or homes, household goods, money, personal investments, automobiles and recreational vehicles.  Certain assets, such as those used for business purposes are not included in the marital property. 

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How can I get a share of marital property?

You and your spouse can agree to the division of your marital property.  If you cannot agree, you may wish to use the services of a mediator to help you resolve differences.  Any agreement that you make can be included in a separation agreement.  Both spouses should have the agreement reviewed by their own lawyer.   If you cannot agree on the division of your property, you must make an application to the Court of King's Bench of New Brunswick, Family Division to get your share.  You should get legal advice.  If you are in financial need, ask your lawyer if she/he will handle your application and take payment of the fees from the final property settlement.  Legal aid assistance in family-related matters is only available in very limited circumstances.

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When can I ask the court to divide our marital property?

You can ask the Court to divide marital property in the following cases:
(a)    when you get a divorce;
(b)    when you marriage is annulled;
(c)    when you separate from your spouse;
(d)    when you marriage breaks down, whether you separate from your spouse or not; or
(e)    when your spouse has died

Note: After a divorce or annulment, if you wish to make an application for a division of marital property, you must do so within 60 days of the event, except in special circumstances.

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Is marital property always divided equally?

Although the general rule is for equal sharing of property, the Court can order unequal sharing where the spouses have agreed in writing in a domestic contract to share unequally or in certain other special circumstances.

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What about our debts?

Spouses have the right to a share of the marital property and they are equally responsible for a share of the marital debts (debts which you and/or your spouse acquired while you were living together).  Marital debts may include mortgages, car loans, credit card bills, lines of credit, and so on.  When you apply to the Court for your share of the marital property, the Court will also consider the marital debts.  However, the Court may set up the final property settlement so that one spouse does not actually make payments on the marital debts.

*For more information, please see ”Marital Property in New Brunswick”.

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