How Property Is Divided on Divorce in New Brunswick

When a marriage ends, one of the first worries is usually the house, the savings and the debts. In New Brunswick, the rules for dividing them sit in a provincial law, not in the federal divorce law that ends the marriage itself.

This article explains the basic approach, what counts as marital and non-marital property, and when a court can depart from an equal split. The provincial law that sets out these rules is the Marital Property Act. It is general information, not advice on your situation.

This article covers the law of New Brunswick.

The starting point: equal shares

Part 1 of the Marital Property Act, called Division of Marital Property and Debts, says that on application each spouse is entitled to have marital property divided in equal shares. The Act has been in force since 1 March 2013.

That entitlement arises after a divorce or a declaration of nullity. It also arises after separation where there is no reasonable prospect of the spouses resuming cohabitation, or where the marriage has broken down with no reasonable prospect of reconciliation. So you do not always have to wait for a divorce to ask for a division.

What counts as marital property

The Act separates property into two broad groups. Marital property includes family assets, which are things ordinarily used for shelter, transportation, or household, educational, recreational, social or aesthetic purposes, such as the marital home and household goods. These count whether they were acquired before or after the marriage.

Marital property also includes other property owned by one or both spouses that is not a family asset, subject to listed exclusions. In everyday terms, many things built up during the marriage may be shared, but the label depends on the type of asset and how it was acquired.

What is usually non-marital property

Some property sits outside the equal-division rule. Non-marital property includes business assets, gifts between spouses and the income from them, and gifts, devises or bequests from a third party to one spouse only. It generally also covers the proceeds and substitute property of those items.

• Likely marital: the family home, household goods and the family vehicle.
• Likely non-marital: an inheritance left only to you, or a gift from a relative to only one spouse.
• Likely non-marital: business assets.
• Debts are also dealt with under the same Part of the Act, which covers division of marital property and debts.

Real situations blur these lines, for example when an inheritance is used to renovate the family home. A lawyer can look at the specific facts and tell you how an asset is likely to be classified.

When the split may not be equal

Equal is the starting point, not a guarantee. The court can exclude a family asset that was acquired before the marriage or by gift or inheritance if including it would be unfair and unreasonable to the owner. It looks at factors such as whether the other spouse made no substantial contribution, whether cohabitation was short, and whether there was an understanding that shared use would not affect ownership.

The court can also order unequal shares where an equal division would be inequitable. It considers agreements other than a domestic contract, the length of cohabitation, the length of separation, when the property was acquired, inheritances or gifts, and other circumstances.

Deadlines, agreements and what to do next

An application for division must generally be made within sixty days after a spouse ceases to be a spouse because of a divorce or declaration of nullity. The court can extend the time where a person lacked knowledge or was prevented by circumstances beyond their control. Do not count on an extension.

Spouses can also settle property in a written domestic contract, such as a separation agreement, which must be in writing, signed by the parties to be bound, and witnessed. Common-law partners are treated differently: the equal-division rule applies to spouses, meaning married persons, so a common-law partner does not get automatic equal division of the home or other property.

• List every asset and debt, with dates and how each was acquired.
• Gather statements for bank, pension, investment and mortgage accounts.
• Note any gifts, inheritances or pre-marriage property and where the money went.
• Write down your key dates, including separation and any divorce date.
• Speak with a lawyer early, before the sixty-day window becomes a problem.

Frequently asked questions