The following definitions apply in this Act. 1980, c.M-1.1, s.1; 2023, c.17, s.148
“business asset” means property owned by one spouse and used principally in the course of a business carried on by that spouse, either alone or jointly with others, and includes shares that the spouse owns in a corporation through which he or she carries on a business. (actif commercial)
“cohabit” means to live together in a conjugal relationship. (cohabiter)
“Court” means The Court of King’s Bench of New Brunswick and includes any judge of that court. (Cour)
“disposition” means any alienation or disposition or purported or attempted alienation or disposition of property or any part of it or any interest in it whether in writing or not and includes a conveyance, agreement for sale, option to purchase, mortgage, lease, encumbrance, charge, settlement or any other transaction conveying or passing or intended to convey or pass an interest in property. (disposition)
“domestic contract” means a domestic contract as defined in Part 3. (contrat domestique)
“family assets” means property, whether acquired before or after marriage, owned by one spouse or both spouses and ordinarily used or enjoyed for shelter or transportation or for household, educational, recreational, social or aesthetic purposes by both spouses or one or more of their children while the spouses were cohabiting, and includes(actif familial)
(a) a marital home and household goods,
(b) money in an account with a chartered bank, savings office, credit union or trust company if the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes,
(c) shares in a corporation or an interest in a partnership or trust owned by a spouse having a market value equal to the value of the benefit the spouse has in respect of property owned by the corporation, partnership or trustee that would, if it were owned by the spouse, be a family asset,
(d) property over which a spouse has, either alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself, if the property would be a family asset if it were owned by the spouse, and
(e) property disposed of by a spouse but over which the spouse has, either alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, if the property would be a family asset if it were owned by the spouse,
“household goods” means furniture, equipment, appliances and effects owned by one spouse or both spouses and ordinarily used or enjoyed by both spouses or by one or more of their children within or about a marital home while the spouses are or were cohabiting. (objets ménagers)
“marital debts” means the indebtedness of either or both spouses to another person(dettes matrimoniales)
(a) for the purpose of facilitating, during cohabitation, the support, education or recreation of the spouses or one or more of their children, or
(b) in relation to the acquisition, management, maintenance, operation or improvement of marital property.
“marital home” means a marital home referred to in subsection 16(1). (foyer matrimonial)
“marital property” means(biens matrimoniaux)
(a) family assets;
(b) property owned by one spouse or by both spouses that is not a family asset and that was acquired while the spouses cohabited, or in contemplation of marriage, except
(i) a business asset,
(ii) property that was a gift from one spouse to the other, including income from that property,
(iii) property that was a gift, devise or bequest from any other person to one spouse only, including income from that property,
(iv) property that represents the proceeds of disposition of property that was not a family asset and was not acquired while the spouses cohabited or in contemplation of marriage, or that was acquired in exchange for or was purchased with the proceeds of disposition of such property or that represents insurance proceeds with respect to loss of or damage to such property, and
(v) property that represents the proceeds of disposition of property referred to in subparagraphs (ii) and (iii) or that was acquired in exchange for or was purchased with the proceeds of disposition of such property or that represents insurance proceeds with respect to loss of or damage to such property; and
(c) property that was acquired by one spouse after the cessation of cohabitation and that was acquired through the disposition of property that would have been marital property had the disposition not occurred,
“net proceeds” means the proceeds realized by a spouse pursuant to the disposition of an interest in a marital home after deducting any sums(produit net)
(a) payable in respect of any rents owing, any unpaid taxes or any mortgage or lien against the property, or
(b) payable in respect of any obligation reasonably incurred in connection with the disposition that gives rise to the proceeds.
“property” means real or personal property and includes any interest in it. (biens)
“spouse” means a married person. (conjoint)
Child care, household management and financial provision are joint responsibilities of spouses and are recognized to be of equal importance in assessing the contributions of the respective spouses to the acquisition, management, maintenance, operation or improvement of marital property; and, subject to the equitable considerations recognized elsewhere in this Act, the contribution of each spouse to the fulfilment of these responsibilities entitles each spouse to an equal share of the marital property and imposes on each spouse, in relation to the other, the burden of an equal share of the marital debts. 1980, c.M-1.1, s.2
1980, c.M-1.1, s.3; 2005, c.12, s.1
Each spouse, on application to the Court, is entitled to have the marital property divided in equal shares if
(a) a judgment granting a divorce is rendered,
(b) a marriage is declared a nullity,
(c) the spouses are living separate and apart and there is no reasonable prospect of the resumption of cohabitation, or
(d) a marriage has broken down and there is no reasonable prospect of reconciliation, whether or not the spouses are living separate and apart.
For the purposes of this section, a person whose marriage is declared a nullity shall be deemed to have been a spouse during the period between the purported solemnization of marriage and the declaration of nullity.
The Court may extend the limitation period by such length of time and on such terms as it considers just, if a person is prevented from making an application within the limitation period fixed in subsection (2) by
(a) lack of knowledge of the granting of a divorce or a declaration of nullity, or of the date of it, or
(b) circumstances reasonably beyond his or her control.
1980, c.M-1.1, s.4; 1991, c.62, s.2; 1994, c.63, s.1
When a spouse dies, the surviving spouse, on application to the Court, is entitled as against the estate of the deceased spouse to have the marital property divided in equal shares; and in any division of marital property the Court shall, if the applicant so applies, order the deceased spouse’s interest in the marital home and such household goods as may be regarded as necessary to the use and enjoyment of the marital home to vest in the surviving spouse unless, taking into account the considerations set out in section 7 and any claim another person might have to the property, the Court considers that another order would be the fair and equitable order in the circumstances.
As between the entitlement of the surviving spouse to have the marital property divided in equal shares, and the duty of the Court, if it arises, in relation to the marital home and household goods, whichever is the more beneficial to the surviving spouse prevails.
The Court may extend the limitation period by such length of time and on such terms as it considers just, if a person is prevented from making an application within the limitation period fixed in subsection (3) by
(a) lack of knowledge of the occurrence of a death or of the date of death, or
(b) circumstances reasonably beyond his or her control.
When an application is made under subsection (1), if, in the opinion of the Court, the making of the order would be fair and equitable in the circumstances, the Court may order a person to whom any property has been distributed out of the estate of the deceased spouse
(a) to reconvey to the applicant all or part of that property, or
(b) to pay to the applicant an amount representing the value of all or part of the property so distributed.
Any bequest or devise contained in the last will and testament of a deceased spouse, including a specific bequest or devise, and any vesting of property provided by law on an intestacy, is superseded by the rights prescribed in subsection (1).
Subject to subsection (6), in determining any matter respecting the division of marital property under subsection (1) the Court shall, as far as is practicable, divide the property so that the express wishes of the testator may be honoured in respect of specific devises and bequests and the administration of property on behalf of the beneficiaries.
On a division of marital property under subsection (1), if the Court has made an order that does not honour the express wishes of a testator, and it is satisfied that the effect of its order is such that it would not be the wish of the testator that what is left in the testator’s estate be distributed according to the will, the Court may make such further orders as to the distribution of the testator’s estate as will, in the Court’s opinion, best represent the distribution that the testator would have made if, in the will, the testator had left to the surviving spouse the property that the surviving spouse will receive under the order of the Court.
In the implementation of subsection (8), the Court may presume, in the absence of evidence to the contrary, that any wishes of a testator expressed in a will were intended to be carried out in relation to the property in the testator’s estate at the time of death and not to the property remaining in the testator’s estate after a division of marital property under this section.
The authority of a court under the Provision for Dependants Act is subject to the rights of a surviving spouse to a division of marital property under this section.
1980, c.M-1.1, s.5
If a spouse dies after an application has been made for a division under section 3, the application may be continued by or against the estate of the deceased spouse, and, if the application is one that has been brought by the surviving spouse, subsections 4(6), (7) and (10) apply with the necessary modifications.
If a spouse dies after an application has been made for a division under section 4, the application may be continued by the estate of the second deceased spouse against the estate of the first deceased spouse.
If marital property to be divided under section 3 or 4 includes a family asset that was acquired before the spouses married, or by one spouse as a gift from the other spouse or as a gift, devise or bequest from any other person, the Court may exclude that family asset from the division of marital property if, in the discretion of the Court, it would be unfair and unreasonable to the owner to include the family asset in the division of marital property, taking into account the circumstances of the case as well as one or more of the following considerations: 1980, c.M-1.1, s.6
(a) that there was no substantial contribution by the non-owning spouse to the acquisition, management, maintenance, operation or improvement of the family asset;
(b) that the cohabitation of the spouses was of short duration; and
(c) that the spouses had an agreement, arrangement or understanding that the use of the family asset by the non-owning spouse or any of their children would not prejudice any rights of the owning spouse to the family asset, even though this was not expressed in a domestic contract.
(a) any agreement other than a domestic contract,
(b) the duration of the period of cohabitation under the marriage,
(c) the duration of the period during which the spouses have lived separate and apart,
(d) the date when the property was acquired,
(e) the extent to which property was acquired by one spouse by inheritance or by gift, or
(f) any other circumstances relating to the acquisition, disposition, preservation, maintenance, improvement or use of property rendering it inequitable for the division of marital property to be in equal shares.
In determining any application for a division of marital property, the Court may make a division of any property of either spouse that is not marital property if 1980, c.M-1.1, s.8
(a) a spouse has, through transfer, indebtedness, mismanagement or other means, unreasonably impoverished the marital property, or
(b) the result of the division of marital property would be inequitable in the circumstances having regard to
(ii) the effect of the assumption by one spouse of any of the responsibilities set out in section 2 on the ability of the other spouse to acquire, manage, maintain, operate or improve property that is not marital property.
(a) that the title to any specified property directed to a spouse in the division be transferred to or in trust for or vested in the spouse whether absolutely, for life or for a term of years;
(b) the partition or sale of any property;
(c) that payment be made out of the proceeds of sale to one or both spouses, and the amount of the payment;
(d) that any property forming part of the share of either or both spouses be transferred to or in trust for or vested in a child to whom a spouse owes an obligation to provide support;
(e) that either or both spouses give security for the performance of any obligations imposed by the order, including a charge on property; or
(f) that either spouse pay to the other such sum as is set out in the order for the purpose of adjusting the division.
In or pending an application under section 3 or 4, the Court may make such interim orders as it considers necessary for restraining the disposition or impoverishment of any property that may be divided under this Act and for the possession, delivering up, safekeeping and preservation of the property. 1980, c.M-1.1, s.11
When an application is made for a division of marital property under section 3 or 4, each party shall file with the Court and serve on the other a statement verified by oath or statutory declaration disclosing particulars of all property and debts of the party in the manner and form prescribed by the Rules of Court. 1980, c.M-1.1, s.12; 1985, c.4, s.41
If, in the opinion of the Court, the public disclosure of any information required to be contained in the statement under section 12 would be a hardship on the person giving the statement or on any other person, the Court may order that the statement and any cross-examination on it be treated as confidential and not form part of the public record. 1980, c.M-1.1, s.13
If the Court orders security for the performance of any obligation under this Part or charges the property with it, the Court may, on application and notice to all persons having an interest in the property, direct its sale for the purpose of realizing the security or charge. 1980, c.M-1.1, s.14
1980, c.M-1.1, s.15; 2008, c.45, s.14
The rule of law applying a presumption of advancement in questions of the ownership of property as between spouses is abolished, and in its place the rule of law applying a presumption of a resulting trust shall be applied in the same manner as if they were not married, except that
(a) the fact that property is placed or taken in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that each spouse is intended to have on a severance of the joint tenancy a one-half beneficial interest in the property, and
(b) money on deposit in a chartered bank, savings office, credit union or trust company in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of paragraph (a).
Subsection (1) applies even though the event giving rise to the presumption occurred before January 1, 1981.
1980, c.M-1.1, s.16, ss.17(1)
Property that is or has been occupied by a person and his or her spouse as their family residence is a marital home, and if property that includes a marital home is used for a purpose in addition to a family residence, the marital home is that portion of the property that may reasonably be regarded as necessary to the use and enjoyment of the family residence.
Subsection (1) applies even though its application results in more than one marital home.
A share or shares, or an interest in a share or shares, of a corporation entitling the owner to the occupation of a marital home owned by the corporation shall be deemed to be an interest in the marital home for purposes of this Part. 1980, c.M-1.1, ss.17(2)
1980, c.M-1.1, s.18
A spouse is equally entitled to any right of possession the other spouse has in a marital home, subject to an order for exclusive possession under section 23 and subject to the provisions of a domestic contract.
1980, c.M-1.1, s.19
No spouse shall make a disposition of any interest in a marital home unless
(a) the other spouse joins in the instrument,
(b) if the disposition is not made by an instrument, the other spouse consents to the disposition,
(c) the other spouse has released all rights to the marital home under this Part by a domestic contract,
(d) the marital home has been released from the application of this Part by an order under paragraph 23(1)(b), or
(e) the disposition has been authorized by the Court.
If a spouse makes a disposition of an interest in a marital home in contravention of subsection (1), the disposition may be set aside on an application under section 22 unless the person holding the interest at the time of the application acquired it for value, in good faith and without notice that the property was at the time of the disposition a marital home.
For the purposes of subsection (2), a person who at the time of the disposition relies on an affidavit of the person making the disposition verifying
(a) that he or she is not, or was not, a spouse at the time of the disposition,
(b) that the property has never been occupied by the person and his or her spouse as their marital home,
(c) that the other spouse has released all rights to the marital home under this Part by a domestic contract, or
(d) that the property has been released from the application of this Part by an order under paragraph 23(1)(b),
1980, c.M-1.1, s.20
Subject to an order made under subsection (2), and to the provisions of a domestic contract, each spouse is entitled to one-half of the net proceeds realized by one or by both of the spouses from the disposition of an interest in the marital home.
On the application of a spouse, the Court may order a division of the net proceeds realized from the disposition of an interest in the marital home resulting in shares that are not equal if the Court is of the opinion that to divide the net proceeds in equal shares would be inequitable, having regard to
(a) any agreement other than a domestic contract,
(b) the duration of the period of cohabitation under the marriage,
(c) the duration of the period during which the spouses have lived separate and apart,
(d) the date when the interest in the marital home was acquired,
(e) the extent to which the interest in the marital home was acquired by one spouse by inheritance or by gift, or
(f) any other circumstances relating to the acquisition, disposition, preservation, maintenance, improvement or use of the marital home rendering it inequitable for the division of net proceeds to be in equal shares.
If one spouse or any other person acting for or on behalf of either or both spouses holds the net proceeds mentioned in subsections (1) and (2), that spouse or person holds those net proceeds in trust to be divided equally between the spouses, or in accordance with an order made under subsection (2) or the provisions of a domestic contract.
For the purposes of this section, an expropriation of an interest in a marital home shall be deemed to be a disposition of that interest.
1980, c.M-1.1, s.21
In any proceeding to realize on a lien, encumbrance or execution, or to exercise a forfeiture, against property that is or includes an interest in a marital home, the spouse who has a right of possession by virtue of section 18 has the same right to redemption or relief against forfeiture as the other spouse has and is entitled to any notice respecting the claim and its enforcement or realization to which the other spouse is entitled.
If a spouse makes any payment by way of or on account of redemption or relief against forfeiture under the right conferred by subsection (1), the payment shall be applied in satisfaction of the claim giving rise to the lien, encumbrance, execution or forfeiture.
On the application of a spouse, or of a person having an interest in property, the Court may, by order, 1980, c.M-1.1, s.22
(a) determine whether or not the property is or includes a marital home and, if so, the extent of the marital home;
(b) subject to such terms and conditions including provision of other comparable accommodation or payment in its place as the Court considers appropriate, authorize a disposition of any interest in the marital home if the Court finds that the spouse whose consent is required
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent;
(c) dispense with any notice required to be given under section 21;
(d) direct the setting aside of any disposition of an interest in the marital home contrary to subsection 19(1) and the revesting of the interest or any part of the interest on such terms and subject to such conditions as the Court considers appropriate; and
(e) if a false affidavit is given under subsection 19(3), direct the person who swore the false affidavit, or any person who knew at the time it was sworn that the affidavit was false and who subsequently conveyed the property, to substitute other property for the marital home or direct the person to set aside money or security in its place subject to such terms and conditions as the Court considers appropriate.
1980, c.M-1.1, s.23
(a) direct that one spouse be given exclusive possession of a marital home or part of it for such period as the Court directs;
(b) as part of an order made under paragraph (a), release any other property that is a marital home from the application of this Part;
(c) direct a spouse to whom exclusive possession of a marital home is given to pay such periodic payments to the other spouse as are prescribed in the order;
(e) fix the obligation to repair and maintain the marital home or to pay other liabilities arising in respect of it.
An order may be made under subsection (1) for temporary relief pending the bringing or disposition of another application under this Act.
An order under subsection (1) for exclusive possession may be made only if, in the opinion of the Court, other provision for shelter is not adequate in the circumstances or it is in the best interests of a child to make an order.
An order made under paragraph (1)(a), (c), (d) or (e) ceases to apply on the death of either spouse.
1980, c.M-1.1, s.24
On the application of a person who is subject to terms and conditions imposed in an order made under paragraph 22(b), the Court may discharge, vary or suspend the terms and conditions if the Court is satisfied that the terms and conditions are no longer appropriate.
In an application under this Part, the Court may make such interim orders as it considers necessary for the delivering up, safekeeping and preservation of the marital home or household goods. 1980, c.M-1.1, s.25
1980, c.M-1.1, s.26
A spouse is equally entitled to any right of possession the other spouse has in household goods, subject to an order made in respect of household goods incidental to an order for exclusive possession of a marital home, subject to an order made under section 27 and subject to the provisions of a domestic contract.
The right of a spouse to possession under subsection (1) terminates on the spouse ceasing to be a spouse.
1980, c.M-1.1, s.27
A spouse may apply to the Court for an order in respect of household goods that the applicant specifies in the application and that are not included in an order made in respect of household goods incidental to an order for exclusive possession of a marital home.
After service on the other spouse of notice of an application under subsection (1), that other spouse shall not while the application is pending dispose of any interest in any of the household goods specified in the application unless the consent in writing of the applicant or the leave of the Court is obtained.
If an application is made under subsection (1), the Court may order the following, and may impose such incidental, supplemental and consequential provisions as the Court considers necessary:
(a) that, as between the applicant and the other spouse, the applicant shall have exclusive possession of the household goods to which the application relates or of such of those household goods as the Court specifies; and
(b) that the other spouse shall not dispose of the household goods specified in the order.
In determining whether to exercise its powers under subsection (3) in respect of household goods, the Court shall consider
(a) the extent to which the household goods are needed by the applicant to satisfy the ordinary requirements of his or her daily life, including any requirements arising from the family responsibilities of the applicant, and
(b) all other circumstances of the case.
1980, c.M-1.1, s.28
An order made under subsection 27(3) terminates on divorce, when the marriage is declared a nullity or on the death of either spouse.
On the application of either spouse, the Court may vary, discharge or suspend an order made under subsection 27(3) if it is satisfied that there has been a material change in circumstances.
1980, c.M-1.1, s.29, s.30
If an application is made under subsection 27(1) and it appears to the Court that any household goods specified in the application have, without the consent of the applicant, been disposed of by the defendant,
(a) within the period of three months immediately before the date of the application,
(b) on or after the date of the application but before the service of notice of the application on the defendant, or
(c) in contravention of subsection 27(2),
If any household goods are disposed of in contravention of subsection 27(2), an order made under subsection 27(3), or an order made under paragraph 23(1)(d), to a person having notice that household goods are being disposed of in contravention of any of them, the Court, on application by the spouse who applied for an order in respect of the household goods, may order that person to pay to the applicant in respect of the loss of the use and enjoyment of those household goods such amount as the Court considers fair and reasonable.
If any household goods are disposed of in contravention of an order made under subsection 27(3), an order made under paragraph 23(1)(d), the Court, on application of the spouse in whose favour the order in respect of the household goods was made, may order the other spouse to pay to the applicant in respect of the loss of the use and enjoyment of those household goods such amount as the Court considers fair and reasonable.
1994, c.50, s.4
A registration under subsection (1) may be renewed, discharged or otherwise amended in accordance with the regulations under the Personal Property Security Act.
For the purposes of determining under subsection 29(2) whether a person had notice that household goods were being disposed of in contravention of an order under subsection 27(3) or paragraph 23(1)(d), the registration under subsection (1) of a notice of an order affecting household goods shall be deemed to be notice of the order and its terms to that person.
Subsection (3) does not apply to
(a) a disposition of household goods that are serial numbered goods within the meaning of the regulations under the Personal Property Security Act unless the goods were described by serial number in the registration of the notice of the order affecting the goods, or
(b) a disposition of household goods that are acquired as consumer goods within the meaning of the Personal Property Security Act if the purchase price of the goods does not exceed $1,000 in the case of a sale or if the market value of the goods, in the case of a lease, does not exceed $1,000.
In determining whether to exercise its powers under section 29, and in determining the amount to be paid, the Court shall have regard to all the circumstances, including any expenditure incurred or to be incurred by the applicant by reason of the loss of the use and enjoyment of any household goods and any expenditure incurred in providing a substitute or replacement for those household goods. 1980, c.M-1.1, s.31
Subject to the provisions of a domestic contract, if a person executes a sale of, or gives a security interest in, household goods that is not accompanied by an immediate delivery and an actual and continued change of possession of the household goods, the sale or the security agreement shall not convey any right, title or interest in the household goods unless the spouse of that person consents to the sale or the security agreement and joins in the instrument evidencing the sale or in the security agreement. 1980, c.M-1.1, s.32; 1994, c.50, s.4
The following definitions apply in this Part. 1980, c.M-1.1, s.33; 2020, c.24, s.12
“domestic contract” means a marriage contract, separation agreement or an agreement entered into under section 35. (contrat domestique)
“marriage contract” means an agreement entered into under section 34. (contrat de mariage)
“separation agreement” means an agreement entered into under section 36. (entente de séparation)
1980, c.M-1.1, s.34; 2008, c.45, s.14; 2020, c.24, s.12
Two persons may enter into an agreement, before their marriage or during their marriage while cohabiting, in which they agree on their respective rights and obligations under the marriage or on separation or the annulment or dissolution of the marriage or on death, including
(a) ownership in or division of property,
(b) support obligations, and
(c) any other matter in the settlement of their affairs.
In an agreement under subsection (1), the persons may not agree to the right to parenting time or decision-making responsibility with respect to their children.
1980, c.M-1.1, s.35; 2008, c.45, s.14; 2020, c.24, s.12
Two persons who are cohabiting and are not married to one another may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or death, including
(a) ownership in or division of property,
(b) support obligations, and
(c) any other matter in the settlement of their affairs.
In an agreement under subsection (1), the persons may not agree to the right to parenting time or decision-making responsibility with respect to their children.
If the parties to an agreement entered into under subsection (1) subsequently marry, the agreement shall be deemed to be a marriage contract.
2020, c.24, s.12Two persons who cohabited and are living separate and apart or who are cohabiting and agree to live separate and apart may enter into a separation agreement in which they agree on their respective rights and obligations, including 1980, c.M-1.1, s.36; 2008, c.45, s.14; 2020, c.24, s.12
(a) ownership in or division of property,
(b) support obligations,
(c) the right to parenting time or decision-making responsibility with respect to their children, and
(d) any other matter in the settlement of their affairs.
A domestic contract and any agreement to amend or rescind a domestic contract shall be in writing, shall be signed by the parties to be bound and shall be witnessed. 1980, c.M-1.1, ss.37(1)
1980, c.M-1.1, ss.37(2), (3); 2005, c.P-26.5, s.27; 2020, c.24, s.12; 2022, c.60, s.75
A minor who has capacity to contract marriage has capacity to enter into a marriage contract or a separation agreement that is approved by the Court, whether the approval is given before or after the contract is entered into.
Subject to the approval of the Court, the following persons may enter into a domestic contract or give any waiver or consent under this Act on behalf of a person who does not have the capacity to do so:
(a) the person’s representative appointed under the Supported Decision-Making and Representation Act; or
(b) the Public Trustee appointed under the Public Trustee Act, if the representative is the spouse of the person or if the person does not have a representative.
In the declaration of any matter respecting the support of a child or parenting time or decision-making responsibility with respect to a child, the Court may disregard any provision of a domestic contract pertaining to it if, in the opinion of the Court, to do so is in the best interests of the child. 1980, c.M-1.1, ss.38(1); 2020, c.24, s.12
1980, c.M-1.1, ss.38(2), (3); 1987, c.6, s.58; 2020, c.24, s.12
A provision in a separation agreement or a provision in a marriage contract to take effect on separation by which any right of a spouse is dependent on remaining chaste is void, but this subsection shall not be construed to affect a contingency on remarriage or cohabitation with another.
A provision in a separation agreement made before January 1, 1981, by which any right of a spouse is dependent on remaining chaste shall be given effect as a contingency on remarriage or cohabitation with another.
1980, c.M-1.1, s.39
A separation agreement or a marriage contract validly made before January 1, 1981, shall be deemed to be a domestic contract for the purposes of this Act.
If a domestic contract is entered into in accordance with this Part before January 1, 1981, and the contract or any part would be valid if entered into after January 1, 1981, and the contract or part is entered into in contemplation of the commencement of this Part, the contract or part is not invalid for the reason only that it was entered into before January 1, 1981.
The Court may disregard any provision of a domestic contract if the Court is of the opinion that to apply the provision would be inequitable in all the circumstances of the case if 1980, c.M-1.1, s.41
(a) the domestic contract was made before January 1, 1981, and was not made in contemplation of the commencement of this Part, or
(b) the spouse who challenges the provision entered into the domestic contract without receiving legal advice from a person independent of any legal adviser of the other spouse.
1980, c.M-1.1, s.42; 1985, c.4, s.41; 2008, c.45, s.14
Any interested person may apply to the Court for the determination of any question between a spouse or former spouse and his or her spouse or former spouse as to the ownership or right to possession of any property, and the Court may do the following and may make such other orders or directions as are ancillary to the order or declaration:
(a) declare the ownership or right to possession;
(b) order payment in compensation for the interest of either party;
(c) order that the property be partitioned or sold for the purpose of realizing the interest in it; and
(d) order that either or both spouses give security for the performance of any obligation imposed by the order, including a charge on property.
In determining any question referred to in subsection (1), the Court shall regard any contribution in terms of work, money or money’s worth with respect to the acquisition, management, maintenance, operation or improvement of property as a contribution giving rise to an interest in the property, and the Court shall determine and assess the contribution without regard to the relationship of married persons or the fact that the acts constituting the contribution are those of a reasonable spouse in the circumstances.
If both spouses or former spouses have contributed substantially to the acquisition, management, maintenance, operation or improvement of property, the contributions of the spouses or former spouses shall be presumed to have been equal, and the onus lies on the spouse or former spouse claiming the larger share to establish that he or she made the greater contribution.
If an application is made under subsection (1), each spouse or former spouse who is a party shall, in the manner and form prescribed by the Rules of Court, file with the Court and serve on the other spouse or former spouse who is a party a statement verified by oath or statutory declaration disclosing particulars of that party’s contribution to the property in question.
If, in the opinion of the Court, the public disclosure of any information required to be contained in the statement under subsection (4) would be a hardship on the person giving the statement or on any other person, the Court may order that the statement and any cross-examination on it be treated as confidential and not form part of the public record.
If the Court orders security for the performance of any obligation imposed by an order under this section or charges the property with it, the Court may, on application and notice to all persons having an interest in the property, direct its sale for the purpose of realizing the security or charge.
In or pending an application under this section, the Court may make such interim orders as it considers necessary for restraining the disposition or impoverishment of the property with respect to which the application is or will be made, and for the possession, delivering up, safekeeping and preservation of the property.
An application shall not be made under subsection (1) with respect to any property if an application or an order has been made respecting that property under Part 1.
This Act applies even though 1980, c.M-1.1, s.43
(a) the spouses entered into the marriage before January 1, 1981,
(b) the property in issue was acquired before January 1, 1981, or
(c) a proceeding with respect to property rights as between spouses was commenced, but not determined, before January 1, 1981.
1980, c.M-1.1, s.44
Parts 1, 2 and 3 of this Act apply with respect to
(a) property rights as between spouses who maintained their last common habitual residence in the Province, and
(b) if there has been no common habitual residence, property rights as between spouses one of whom has maintained his or her last habitual residence in the Province.
Any spouse who is not described in subsection (1) may apply under section 44 with respect to the ownership of or right to possession of any property, including the division of property, and the Court shall dispose of the application in accordance with the law of the last common habitual residence of the spouses, or if there is no such residence the last habitual residence of the applicant.
In disposing of an application referred to in subsection (2), the Court, in order to give effect to the rights of any party with respect to any property, may make any order that it might make if Parts 1, 2 and 3 applied with respect to the rights of the parties.
Subject to the general limitations on the authority of the Court to make an order affecting land outside the Province, this Act applies in respect of property whether situated within or outside the Province; and in determining any right to a division of property or any other right as between parties the Court shall, as is necessary, take into account property of the parties wherever situated. 1980, c.M-1.1, s.45
An order made under this Act affecting land is registrable under the Registry Act. 1980, c.M-1.1, s.46
Any right given to a spouse under section 2, 3 or 4 to a division of property, or under section 18, 23 or 26 to the possession of property, does not constitute an interest in property owned by the other spouse and, except if otherwise provided in this Act or an order made under this Act, shall not be construed so as to prevent the spouse who owns marital property from disposing of that property as if this Act had not been passed. 1980, c.M-1.1, s.47
1980, c.M-1.1, s.49
Subject to subsection (2) the common law right of a widow to dower is abolished.
Subsection (1) does not apply with respect to a right to dower that has vested in possession before January 1, 1981, and, despite the repeal of the Dower Act, chapter D-13 of the Revised Statutes, 1973, any such right shall be determined on the basis of the law in force immediately before January 1, 1981.