How Property Is Divided in a Divorce in Newfoundland and Labrador

When a marriage ends, one of the first worries is who keeps the house, the savings and the pension. In Newfoundland and Labrador, property between spouses is mainly governed by the Family Law Act, not the Divorce Act.

This article explains the Act's terms, why an equal split is the starting point but not a guarantee, and the practical steps. Your situation may turn on details, so treat this as general information.

This article covers the law of Newfoundland and Labrador.

What counts as matrimonial assets

The Family Law Act uses the term matrimonial assets, not family assets. It includes all real and personal property acquired by either or both spouses during the marriage.

Some property is left out. Gifts, inheritances, trusts or settlements received by one spouse from someone other than the other spouse are excluded, as are business assets and property acquired after separation. Business assets means property primarily used or held for a commercial, business, investment or other income-producing purpose.

The Act's property rules apply even to marriages that began before July 1, 1980.

The Act's meaning of spouse includes married persons, and also persons who went through a form of marriage in good faith that is void and who are cohabiting or have cohabited within the preceding year. Common-law partners are covered separately by the Act's definition of partner, which means two people who cohabited in a conjugal relationship outside marriage for at least 2 years, or at least 1 year if they are together the biological or adoptive parents of a child.

Is the split always equal?

Either spouse is entitled to apply to a court to have the matrimonial assets divided in equal shares. That is the starting point.

The court can divide them unequally where equal shares would be grossly unjust or unconscionable. Factors include the length of the marriage, each spouse's contributions to the welfare of the family, and dissipation of assets.

A signed domestic contract, such as a separation agreement, on a matter the Act also covers generally prevails over the Act's default rules. To be enforceable it must be in writing, signed and witnessed.

Dates matter here. Keep track of when you separated and when each asset was acquired, because property acquired after separation is excluded from matrimonial assets.

Business assets, the home and pensions

• Business assets: a spouse who contributed work, money or money's worth to the other spouse's business asset may apply for compensation or a share.
• Matrimonial home: the dwelling occupied by the spouses and owned by either or both. Each spouse has the same right of use, possession and management, and a court can give one spouse exclusive possession on application.
• Pensions: the administrator must divide a pension under a Family Law Act court order or separation agreement, and must not divide it if the order or agreement is incomplete or unclear, or if a member objects. The member's commuted value cannot fall below 50% of its pre-division value.

Pension division uses the Family Law Act meaning of spouse. The Pension Benefits Act, 1997 has its own definition of a cohabiting partner, which is someone who cohabited continuously in a conjugal relationship for not less than 3 years where the member has a spouse, or 1 year where there is no spouse. Because the thresholds differ between laws, how they apply to you depends on your situation and is worth confirming with a lawyer.

The process step by step

• Separate. Separation is a matter of living apart, and spouses can be separate under one roof if they stop joint activities.
• List what each of you owns and owes, and when it was acquired. A separation agreement should include full financial disclosure.
• Try to agree. If you do, put it in a written, signed and witnessed agreement. A court may set aside an agreement if a party failed to disclose significant assets or debts, or did not understand its consequences.
• If you cannot agree, apply to the court. The Family Division of the Supreme Court handles property disputes between spouses or partners.
• The court decides, generally starting from equal shares and considering whether an unequal division is warranted.

Which court location handles your matter depends on where you live. The Family Division has exclusive jurisdiction in the East Coast and West Coast judicial areas. In areas where the Family Division does not operate, the General Division of the Supreme Court also exercises jurisdiction over some family matters.

Time limits and what to do next

An application to divide matrimonial assets cannot be brought more than 2 years after the marriage is terminated by divorce or nullity, or 6 years after separation with no reasonable prospect of resuming cohabitation, or 1 year after the first spouse's death.

Which of these limits applies to you depends on your facts, such as whether you have separated, divorced or lost a spouse, so it is worth confirming the dates with a lawyer before you wait.

• Gather statements for bank accounts, pensions, property and debts.
• Note the dates assets were acquired and any gifts or inheritances.
• Note which assets are used for business or income.
• Mark the time limits that apply to you.
• Speak with a lawyer before signing any agreement.

Frequently asked questions