Page 9 - Demo

PROPERTY DIVISION
• An equal division would be disproportionately large in relation to a period of cohabitation that is less than ve years;
• One spouse incurred a disproportionately large amount of debts than the other spouse for the support of the family; or
• There are other, but similar, circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of property.
Certain property acquired during the marriage is excluded from property that is valued for the purpose of calculating the property payment. The most signi cant excluded property is “property” other than the matrimonial home that was acquired by gift or inheritance from a third person after the date of marriage,” and property into which this excluded property can be traced. (Emphasis added.)
A matrimonial home, property which is not excluded, is net family residence in which at least one of the spouses has an interest, that is ordinarily occupied by the spouses, “or if the spouses have separated, at the time of separation ordinarily occupied” by them. There can be more than one matrimonial home; for example, both a home in the city and a cottage in the country would be matrimonial homes.
To qualify as a matrimonial home, the family residence must be ordinarily occupied (that is, actually occupied, or available for occupation), by the parties at the time of the separation. A family residence that is sold before the separation is not a matrimonial home. For example, a residence for several years, but which is sold (with the spouses moving into other premises), is not a matrimonial home and the value of the residence is part of the property whose value is deducted in calculating the spouse’s net family property.
Property, other than the matrimonial home, into which excluded property can be traced, is also excluded property. If, for example, the wife’s father gives her an automobile after the marriage which she eventually sells and uses the proceeds to purchase a dining room table. The table is excluded because it can be traced to excluded property, the gift of the automobile.
The person making the gift or leaving the inheritance must be someone other than the spouse of the recipient. Gifts between spouses are not excluded property.
Gifts and inheritance made before the wedding are not excluded from property valued for the purpose of calculating the property payment. This means that where the gifts or inheritance are made before the wedding, any increase or gain that accrues after the wedding and before separation (that is, during cohabitation under the marriage) is included in the calculation. However (except where the gift or inheritance is a matrimonial home), the value as at date of the wedding is not included. In the calculation of the payment, the value of the property owned on the date of marriage, other than the matrimonial home, is deducted.
Other property and excluded from property for purposes of calculating the property payment consists of:
• Income from property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of marriage, but only if the donor or tester has expressly stated that the income is to be excluded.
• Damages for personal injuries, nerves shock, mental distress or loss of guidance, care and companionship. An example would be the damages that are paid on claim made for an injury receive in an automobile accident.
• Proceeds of a policy of life insurance.
• Property, other than a matrimonial home, into which any of the above items can be traced.
• “Property that the spouses have agreed by a domestic contract [marriage contract] is not to be
included in the spouses’ net family property”.
MACDONALD & PARTNERS LLP