Under The Family Property Act, the value of all assets owned by either or both spouses or common-law partners, including real estate, money, investments, vehicles and jewelry, must be shared by them.
There are some exceptions:
- Property acquired before the marriage or before the common-law couple began living together will not be included, unless it was acquired in contemplation of the relationship. However, any increase or decrease in the value of such property during the relationship must be shared. For married couples who lived together immediately before they married, any property acquired during the time they lived together must also be shared.
- Property dealt with in a written agreement between the spouses or common-law partners will not be shared unless a court has set the agreement aside. Those who do not want The Family Property Act to apply to their property must clearly say so in writing. This agreement may be made before or during the relationship, or upon its breakdown, and must be very carefully drawn up. Visit the Separation and Divorce section for more information. Each spouse or partner should see their own lawyer and receive independent legal advice before signing such an agreement.
- Compensation received by one spouse or common-law partner for a personal injury or disability will not be shareable upon relationship breakdown, unless it was to compensate for a loss suffered by both spouses or partners.
- A gift or inheritance received by one spouse or common-law partner from a third person will not be shareable upon relationship breakdown, unless the gift giver intended to benefit both spouses or partners. However, if the gift or inheritance is of extraordinary value, this value may be taken into account in determining how commercial assets will be shared.
- Property equally owned by both spouses or common-law partners (jointly-owned property) is not shareable under The Family Property Act, as each spouse or partner already owns one-half of this property in law. For example, often the family home is jointly owned, so both spouses or common-law partners must agree in writing to any sale, mortgage or other transaction involving it. If spouses or common-law partners cannot agree to the sale of a jointly-owned home, an application to have the property sold and the proceeds divided can be made to the court under The Law of Property Act.
- Property acquired by one spouse or common-law partner after the couple separated will not be shareable between them.