Is Marital Property Always Split Equally in New Brunswick?

If you are separating, you may worry that an equal split of property will not be fair to you. Equal division is the starting point in New Brunswick, but it is not the end of the story.

This article explains what the Marital Property Act says, which property may be left out, and when a court can order unequal shares. It is general information, not advice on your own situation.

This article covers the law of New Brunswick.

The starting point: equal shares

Under the Marital Property Act, on application, each spouse is entitled to have marital property divided in equal shares. This applies after divorce, nullity, or separation with no reasonable prospect of resuming cohabitation, or where the marriage has broken down with no reasonable prospect of reconciliation.

Marital property includes family assets, meaning property ordinarily used for shelter, transportation, or household, educational, recreational, social or aesthetic purposes, such as the marital home and household goods. Family assets 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.

Property that may be left out

Some property is non-marital. This includes business assets, gifts between spouses and income from them, and gifts, devises or bequests from a third party to one spouse only, generally along with their proceeds and substitute property.

The Court can also exclude a family asset acquired before the marriage, or by gift or inheritance, if including it would be unfair and unreasonable to the owner. It may consider factors such as no substantial contribution by the other spouse, short cohabitation, and an understanding that shared use would not affect ownership.

When the court can order unequal shares

The Court can order unequal shares where equal division would be inequitable. The word used in the Act is inequitable, and whether that threshold is met depends on the facts. In deciding, the Court considers the following:

• Agreements between the spouses, other than a domestic contract.
• The length of cohabitation.
• The length of separation.
• When the property was acquired.
• Inheritance or gifts.
• Other circumstances.

Departing from equal shares is an exception. A spouse who asks for it should expect to explain clearly why equal division would not be fair.

Agreements, deadlines and unmarried couples

A domestic contract, such as a separation agreement or marriage contract, and any amendment or rescission, must be in writing, signed by the parties to be bound, and witnessed. A domestic contract generally prevails over a conflicting provision of the Act, so a valid signed and witnessed agreement on property is generally binding. The Court may disregard a provision where a spouse signed without legal advice independent of the other spouse's advisor and applying it would be inequitable in all the circumstances.

Timing matters. An application for division must generally be made within sixty days after a spouse ceases to be a spouse by reason 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.

The equal-division rule applies to spouses, meaning married persons. A common-law partner does not get automatic equal division of the home or other property and must rely on unjust enrichment, or negotiate a settlement. Cohabitation alone does not create an entitlement to a share.

What to do next

• List all property and debts, noting who owns each and when it was acquired.
• Identify gifts, inheritances, business assets and property owned before the marriage.
• Find any marriage contract or separation agreement you have signed.
• Check the deadline to apply if a divorce has been granted or is close.
• Get legal advice before signing any agreement dividing property.

Frequently asked questions