ontario divorce law

The division of property upon divorce

Posted on by Behdad Hosseini

The division of property upon divorce

There are many components to a divorce. There is what happens prior to a decision to divorce, such as the emotional decision to break up a marriage and all the corresponding personal consequences, and then there is what happens after the decision to divorce is made. In the case of the latter, there is probably no more clear-cut and definitive area of divorce than the division of property: what happens to everything a married couple owned together?

Equal: 50/50

The division of property is a specific area of divorce law. As with most areas of divorce law in Canada, the provinces have prominent jurisdiction over specific rules that apply in the field. However, in general, marriage is considered an equal partnership. This means that everything that was obtained during the marriage, and owned upon its breakup, is to be divided equally.

Alternatively, assets owned by a party prior to the marriage are generally returned to that party — with the proviso that any increase in the value of that asset during the marriage is shared equally. In other words, the equality component of the institution of marriage in Canada is pretty much straight down the line and vigorously enforced.

The one exception

The one area, however, where equal splitting of assets does not apply is the matrimonial home: where the married couple resided at the time of divorce. It is also an area of divorce law where specific regulations depend on provincial jurisdiction.

It is generally assumed that both parties to a marriage have equal rights to live in the matrimonial home upon divorce — regardless of whose name is on the property title. Therefore, it is part of the divorce proceedings to determine what the specific status of the home will be: Who will live there, and what financial and other arrangements will be negotiated once the decision is made.

While the status of the matrimonial home is being determined, neither party is allowed to claim ownership or sell it.

If you need a professional advice on family law, or if you’re thinking of divorce, please phone us here at Hosseini Law Firm (HLF) for a 15 minute free consultation: 416-628-4635, or please use the contact form provided on this page.

Thank you. 

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