Division of Matrimonial Property

Who gets to take what? From family photographs to stocks and bonds, dividing up the property that belongs to the two of you is a difficult and painful part of separation.

Division of property on marriage breakdown is governed by the Matrimonial Property Act. Under the Act, marriage is treated as an economic partnership. So property accumulated during the marriage is divided equally between the spouses on marriage breakdown.

While this sounds simple, there are exceptions. Some property is exempt from distribution. For example, property which you owned before you got married does not have to be divided. However if you have put exempt funds into a joint account, or used them for household expenses, all or part of your exemption may be lost.

A judge can make an exception to the general rule if he or she decides that there are circumstances which would make it unfair to divide the property equally.

You or your spouse may have assets you never thought of as property. For instance, your pension is matrimonial property which must be shared on marriage breakdown.

Division of property does not happen automatically. If the spouses cannot agree voluntarily on the division, one of them must start a lawsuit to claim a share of property from the other. There are time limits for starting a lawsuit which must be met or the right to claim a share of property held by the other spouse will be lost.

It is possible for spouses to agree before or during marriage that they will keep their property separate and that the Matrimonial Property Act will not apply to them. This type of agreement must be prepared by a lawyer to be valid and each spouse must have separate independent legal advice.

Division of matrimonial property can be very complex. If you and your spouse have any significant assets, it would be wise to consult a lawyer to ensure that your rights are protected.

At Birkett Ticoll our goal is to assist you in finding an effective and practical solution to your family law problems. Call us for a free telephone consultation.

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