Property Division When a Marriage Is Annulled in Ontario

An annulment is different from a divorce. It is a finding that a marriage was void or voidable, rather than an ending of a valid marriage. If you are in that position, you may wonder whether the usual property rules for married spouses still apply to you, or whether you are treated more like unmarried partners.

This article does not decide that question for you, because the answer depends on the specific facts and the type of defect in the marriage. It explains the rules that matter in the background and sets out what to ask and what to gather.

Why annulment raises a separate question

The usual starting point in Ontario is that married couples generally split property acquired during the marriage equally, with an equalization payment to the spouse with the smaller share. Common-law couples, by contrast, are not legally required to split property acquired while living together.

When a marriage is void or voidable, it is not always obvious which side of that line your relationship falls on for property purposes. Whether equalization, matrimonial home rights, or neither applies depends on your facts. These are points to confirm with a family lawyer rather than assume.

The general rules to understand first

It helps to understand the standard rules even if they may not apply in full. For married spouses, a property claim must generally be brought within six years of the day of separation or two years from the day the divorce is final, whichever comes first. If your marriage is being annulled rather than ended by divorce, ask your lawyer which date counts for you and treat the earlier dates as the safe assumption.

The family home must be divided equally unless the spouses agree to a different split, and a gifted or inherited family home is not excluded property. Gifts and inheritances from a third person received after the marriage date can be excluded, other than a matrimonial home.

If the common-law route becomes relevant

For common-law partners, a partner who contributed to property the other owns may have a right to part of it, and may need to go to court to recover that contribution. Whether that approach is open to you after an annulment depends on your situation, so it is worth confirming with a lawyer. Trust claims, such as constructive or resulting trusts, may also be advanced, and under the Family Law Act they may be advanced before equalization.

The time limit for those kinds of claims is a separate question that depends on the claim, so do not wait to get advice.

• Keep records of money you put into a home, a business or an account.
• Keep proof of who paid the mortgage, taxes, and renovation costs.
• Note any promises or agreements about ownership, even informal ones.
• Keep your communications about the property.

Matrimonial home rights and title

A transfer or mortgage of a matrimonial home under Part II of the Family Law Act requires a spousal statement (for example, that the person consenting is the spouse, or that the spouse has released rights by separation agreement), or a court order.

One spouse alone may designate property as a matrimonial home on title. The designation stays on the register until the registering spouse removes it, and a single designation does not release other properties from being matrimonial homes. If your title shows a designation, ask a lawyer what it means for you before you sell or refinance.

Lenders are also treated carefully by the courts. In one case, a spouse's attempt to set aside a mortgage failed because he did not prove the lender had actual or constructive notice that the borrower's partner was a spouse and the property was a matrimonial home. The lesson is to raise any rights early rather than after a mortgage is registered.

Agreements and mediation

Spouses can vary the default rules by a domestic contract such as a cohabitation agreement or a separation agreement. A marriage contract or cohabitation agreement must be signed by both parties in front of a witness, and the witness must also sign.

A court may set aside a domestic contract, or part of it, if a party failed to disclose significant assets or debts, did not understand the nature or consequences of the contract, or otherwise under the law of contract. If you reach a deal, make sure both sides share full financial information.

Free family mediation is available in all Ontario family courts, offered at the courthouse on the day you are scheduled to be in court. Court-connected mediation can help with property division, and private mediators also offer it. Family Law Information Centres in family courts can give information on separation, divorce and local resources.

What to do next

• Gather your marriage certificate and any documents about when and where the marriage took place.
• Write down when you began living together and when you separated.
• List property each of you owned at the marriage date and owns now.
• Pull title searches or ask your lawyer to check for matrimonial home designations.
• Keep records of contributions to property owned by the other person.
• Book a consultation with a family lawyer early, because deadlines may apply.

Because the result depends on the type of defect in the marriage and the facts, a lawyer can confirm which property rules apply to you and which deadlines are running.

Frequently asked questions