The starting point for determining what is matrimonial property is any and all of the assets and debts acquired by spouses during the marriage, whether the asset is owned by one party or jointly. The Matrimonial Property Act lists certain types of property which are not matrimonial property, and so are exempt from the requirement of division with the other spouse. The following are examples of assets that are or may be considered exempt and therefore, not shareable:
a) Gifts from a third party to one party;
b) Inheritances of one party;
c) Property owned by one party at the time of marriage;
d) Personal injury/tort damages; and
e) The proceeds of an insurance policy.
Matrimonial assets and debts must be disclosed and identified; normally values are established for each item on a net basis, taking into consideration potential tax consequences as well as any debts associated therewith. How assets are to be distributed between the parties, or whether any are to be sold or liquidated, must then be determined. These determinations are either made by negotiation and agreement or through the Courts or other form of dispute resolution.
Matrimonial Home – The home in which a married couple lived during the marriage. A party may apply to Court for exclusive possession of the matrimonial home, which is typically an Interim Order which grants one of the parties the right to live in the matrimonial home alone pending the sale of the home or one party buying the other out of the home, thereby forcing the other party out of the matrimonial home on a temporary basis.
Unjust Enrichment – Unmarried cohabiting persons are not currently included in the Matrimonial Property Act. However, an unmarried cohabitant may be able to make a claim to an entitlement to share in the property acquired during the relationship by claiming that the other party would be unjustly enriched if they were allowed to retain a disproportionate amount of the assets that resulted from the relationship. For instance, a couple lives together for 20 years, but never marries. During that time, they acquire various assets which are held in one party’s sole name. The other party must make a claim of unjust enrichment in order to receive a share of those assets. If unjust enrichment is found to exist, then the party without the assets may be awarded a monetary judgment or a constructive trust in the property. This means that one party is holding all or, more likely, a portion of the property in trust for the other.