Who Gets the Matrimonial Home After Separation in New Brunswick

For many couples the house is the largest asset and the centre of daily life. After separation, two questions get mixed together: who can stay there right now, and who ends up with the value of the home in the long run.

This article separates those questions. It explains how New Brunswick law treats the home as property, the main exceptions, the time limit to apply, and what to do if you need the other spouse out for safety reasons.

This article covers the law of New Brunswick.

Possession versus ownership

Possession is about who lives in the home and controls it day to day. Ownership is about who holds title and, more importantly after a breakup, how the value is shared. Being on title does not by itself settle either point, and being off title does not necessarily mean you have no claim.

Who may remain in the home while the separation is sorted out depends on the facts, including children and safety, and a lawyer can confirm the options in your case.

How the home is treated as property

Under the Marital Property Act, each spouse is entitled on application 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, which are property ordinarily used for shelter, transportation, or household, educational, recreational, social or aesthetic purposes. The marital home and household goods are examples, and this is so whether they were acquired before or after the marriage.

This means a home one spouse bought before the wedding can still be a family asset. The law then looks at the exceptions below.

Exceptions that can change the result

• The Court may exclude a family asset acquired before marriage or by gift or inheritance if including it would be unfair and unreasonable to the owner. Factors include no substantial contribution by the other spouse, short cohabitation, and an understanding that shared use would not affect ownership.
• The Court may order unequal shares where equal division would be inequitable, considering things such as length of cohabitation, length of separation, when the property was acquired, inheritance or gifts, and other circumstances.
• Gifts between spouses and gifts or inheritances to one spouse only are generally non-marital property, along with their proceeds and substitute property.
• A valid domestic contract, such as a marriage contract or separation agreement, generally prevails over a conflicting provision of the Act.

A domestic contract must be in writing, signed by the parties to be bound, and witnessed. It does not have to involve a lawyer, but the Court may disregard a provision where a spouse signed without independent legal advice and applying it would be inequitable in all the circumstances.

Time limits and unmarried couples

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. Because this deadline is short, get advice early, ideally before the divorce is final.

If you were never married, the picture differs. The equal-division presumption applies to married persons, so a common-law partner does not get automatic equal division of the home. They must rely on unjust enrichment or a constructive trust, or negotiate a settlement. Cohabitation alone does not create an entitlement to a share.

If you need the other spouse out, and next steps

If there is violence or a risk of it, an Emergency Intervention Order may be available. It can grant temporary exclusive occupation of the residence, restrain contact and direct the seizure of weapons. The victim, or a prescribed person with the victim's consent, may apply, and an adjudicator must decide within 24 hours. The order lasts no more than 180 days, and a judge of the Court reviews it within five days.

For non-emergency situations, family matters are heard in the Court of King's Bench, Family Division. Which application fits, and what the Court may order about occupation of the home, depends on your facts, so a lawyer should confirm before you file anything.

• Get a copy of the title or ownership records for the home.
• Note when the home was bought, who paid, and who paid the mortgage.
• Gather any marriage contract or separation agreement.
• Write down any gifts or inheritances used toward the home.
• Note your divorce date and calendar the sixty-day deadline.
• Do not sign a separation agreement without independent legal advice.

Frequently asked questions