This information is for married couples who need to divide property after separation. This legal information does not replace legal advice from a lawyer. It only applies to married spouses and registered domestic partners, not to common-law couples.
Common-law couples: The Matrimonial Property Act does not apply to common-law relationships. Go hereGo here for information about common-law relationships. You can also get information on common-law relationships at nsfamilylaw.ca.
Provincial law: Nova Scotia’s Matrimonial Property Act (law) covers how matrimonial property may be divided after married spouses or registered domestic partners separate. It does not apply to common law couples or First Nation reserves.
Federal First Nations law: Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) covers this area. A First Nation can choose to either follow the FHRMIRA or pass a Matrimonial Real Property law to replace it.
These First Nation communities have passed their own local Matrimonial Real Property laws: Bear River First Nation, Membertou First Nation, Millbrook First Nation, Paqtnkek Mi’kmaw Nation, Pictou Landing First Nation, Sipekne’katik, and We'koqma'q First Nation.
Matrimonial property is any property or assets that either spouse owns or obtains before or during the marriage. It doesn’t matter whose name the property is in. The law presumes that all matrimonial property should be shared equally (50/50) between the spouses if they separate or divorce.
Matrimonial property includes items you and your spouse own like:
You should talk with a lawyer about how your property, whether owned individually or together, may be divided if you separate. Property is only divided once and the division is usually final.
Yes. Employment pensions and Canada Pension Plan (CPP) contributions are matrimonial property and are divided after separation.
These are common types of pensions:
The value of a pension may not be what is on a statement. For example, defined benefit pensions have a future value. You may need to hire an actuary to figure out the value for the period of your relationship.
The general rule is that only the portion of the pension earned while living together before and during the marriage is divided.
Other than the Matrimonial Property Act, pension laws also apply. In Nova Scotia and for most federally regulated employers 50% of the pension value is the maximum transferrable amount. The law that governs the pension also applies to dividing the pension. Some pension administrators have particular wording they need in an agreement or court order to divide the pension. It is important to speak directly with the pension administrator to make sure that the wording of your agreement or court order will be accepted.
You should not give up rights to a share in your spouse's pension without getting legal advice.
The Nova Scotia Family Law website has helpful information about pensions.
CPP law requires spouses to share the credits earned for the period of their relationship, including time lived together as a common law couple and while married.
You cannot agree in writing or in a court order to give up a division of CPP credits. The right to a division of CPP credits is also confirmed in every divorce order that is issued in Nova Scotia.
You or your spouse must apply to CPP for a credit split. If you are entitled but do not want to get a share of your spouse’s CPP credits, then you do not need to apply for them.
These are not usually considered matrimonial property:
The law about dividing business assets is complicated. It can be hard to determine if the business assets may be divided between spouses and how. You should get legal advice.
Matrimonial or family debt is acquired during the marriage for family purposes. The funds would be used for ordinary family items such as household expenses, the family home’s mortgage or debt from financing a family car. If some debts were acquired after you separated, they may still be considered matrimonial debts if used for necessary living expenses or to maintain the house, car or other assets.
The general rule is that matrimonial property is divided equally (50/50) between the spouses.
The spouses must usually have their jointly owned assets and property valued or appraised. The value is usually calculated at the date of separation. However, for some assets the date may be when either spouse applied to the court for property division.
Once you know the value of your matrimonial property, each spouse should value their matrimonial debts and deduct them to get the total (net) property value amount.
The spouse with the higher net amount then makes an equalization payment to the other spouse. They usually do that either with a transfer of money or property. This ensures that both spouses end up with the same net amount of money or property.
For example, imagine a married couple separated with the following assets and debts: