Property Division After a Short Marriage in Ontario

If your marriage ended after only a short time, you may wonder whether you must share everything. The default rule does not have a minimum length, but the way equalization works often leaves less to share after a brief marriage.

This article explains how the calculation works, what is deducted or excluded, and when a court may be asked to divide property unequally.

The basic rule still applies

When a divorce is granted, a marriage is declared a nullity, or spouses separate with no reasonable prospect of resuming cohabitation, the spouse with the lower net family property is entitled to one-half the difference between the two. Equalization is a payment of money, not a split of each asset.

The purpose is to recognize that child care, household management and financial provision are joint responsibilities, and that each spouse contributes equally, whether financially or otherwise.

Why a short marriage often means less to share

Net family property is what you own on the valuation date, minus excluded property, minus your debts, and minus the net value of property, other than a matrimonial home, that you owned on the date of marriage. Because you deduct what you brought into the marriage, only the growth in value during the marriage is shared.

• Gifts and inheritances received from a third person after the date of marriage are excluded, other than a matrimonial home.
• Income from gifted or inherited property is excluded only if the donor or testator expressly said so.
• Personal injury damages, life insurance proceeds payable on death, property traced from those, property excluded by a domestic contract, and Canada Pension Plan unadjusted pensionable earnings are also excluded.
• Debts such as lines of credit, loans and mortgages on the valuation date are deducted.

If a spouse's net family property is less than zero, it is deemed to be zero. The other spouse does not take on that shortfall.

The matrimonial home is treated differently

The deduction for property owned on the date of marriage is not allowed for a property that is a matrimonial home on the valuation date. The home's full value is included even if one spouse owned it before the marriage. A family home that was inherited or received as a gift is also counted in full.

This is often the biggest issue in a short marriage, so it is worth getting advice about it early. You also have the burden of proving any deduction or exclusion you claim.

Arguing for unequal division

A court may award more or less than half the difference, but only if equalizing would be unconscionable, having regard to the listed factors. The Ontario government describes this as available only in very special situations, where an equal split would be extremely unfair.

One listed factor is an amount that is disproportionately large for a period of cohabitation of less than five years. Other factors include these.

• Failure to disclose debts existing at the date of marriage.
• Debts incurred recklessly or in bad faith.
• The part of net family property that consists of gifts from the other spouse.
• Intentional or reckless depletion of net family property.
• One spouse having incurred a disproportionately larger share of debts for the support of the family.

A short marriage does not automatically lead to unequal division. The factor is only one consideration, and the result depends on the facts.

If you signed a marriage contract, it can set out how property is divided on separation and can exclude property from net family property. A domestic contract generally prevails over the Act.

What to do next

• Collect records showing what you owned and owed on the date of marriage, since you must prove deductions.
• Gather statements showing values on the date of separation.
• Check whether the matrimonial home was owned by one of you before the marriage.
• Find any marriage contract or other agreement you signed.
• Note the time limits: an application cannot be brought after the earliest of two years after a divorce, six years after separation, or six months after the first spouse's death.
• Speak with a lawyer if you think an equal split would be unfair.

Frequently asked questions