Assets acquired while married are divided equally
When dividing your property as part of your divorce or separation, each person normally continues to own any property they acquired before the marriage.
However, property you acquired during the marriage will need to be divided equally. If assets acquired before the marriage increased in value, the spouses would also divide that additional amount equally.
Every situation will be unique. It will depend on:
- What assets you have
- What type of relationship you had
- Which province you live in
- What you and your spouse may have agreed on before and during your marriage
Inheritances either person received during the marriage may be excluded from the property to be divided. Other types of property may also be excluded or exempt from being divided, depending on the law that applies in your province.
The general rule is that the net value of the family will be equally divided between both spouses in a divorce. Net value is the value of the property owned by the spouses minus any debts and excluded property.
However, the actual assets or value each partner receives will vary depending on the circumstances of each case and the family law that applies in your province.
Types of assets and how they’re treated
You’ll usually need to split the value of these assets:
- Any family residence (house, cottage, travel trailer, etc.)
- The furniture and items inside any family residence
- Any vehicle(s)
- Retirement savings (employer savings plans, registered retirement savings plans, tax-free savings accounts, locked-in retirement accounts, registered retirement income funds)
- Government pensions (Canada Pension Plan, Quebec Pension Plan, Old Age Security, Guaranteed Income Supplement)
- Joint debts used to acquire, maintain or preserve assets included in the net family property
The value of this next list of assets isn’t usually part of the family property to be split between partners:
- Assets a spouse owned before the marriage
- Assets inherited or received as gifts from a third party during the marriage
- Damages or awards for personal injuries
- Assets the spouses agreed in a domestic contract not to include in the division of family property
What about debt?
Generally, both partners are equally responsible for debt incurred during the marriage. However, there may be some exceptions depending on the circumstances of each case:
- When 1 partner takes on debt to deplete the net family property
- When the debt is reckless due to something such as gambling
- When 1 partner is responsible for a disproportionate amount of debt to support the family
Marriage contracts and cohabitation agreements
A marriage contract is an agreement signed by couples before or after they marry to protect their rights if they ever split up, including rights to property.
Couples in a common law relationship may opt to sign a similar document, called a cohabitation agreement.
These legal documents can dictate what happens if the relationship ends, including:
- How much spousal support will be paid
- How property will be split
- How the couple will dispose of the marital home
Both partners should sign the agreement in front of a witness.
This makes a marriage contract or cohabitation agreement more likely to be binding and enforceable.
Also, both partners should get independent advice from different lawyers and exchange financial information before signing a marriage contract or cohabitation agreement.
Both partners must abide by the agreement once it’s signed. You can negotiate changes in the future if they’re made in writing, signed, witnessed, and made with independent legal advice.
If you separate and either partner challenges the contract, you’ll have to go to court and ask a judge to decide whether to enforce the terms of the contract.
How assets are divided in divorce or separation
The way property is divided varies across Canada and depends on the family law that applies in each province. However, most often each partner must first calculate their own net family property (NFP). There are three steps:
- Calculate the separation date total by totalling the value of assets less any debts and/or liabilities at the separation date.
- Calculate the marriage date total by totalling the value of assets less any debts and/or liabilities at the marriage date.
- Calculate the final NFP by subtracting the marriage date total from the separation date total.
When there is a difference between NFPs, the spouse with the higher NFP then pays the other spouse half of the difference between their respective NFPs. This is known as an “equalization payment.”
The NFP value can never be a negative number. If you have a negative NFP, it’s treated as though it were zero.
Learn more and see calculations in this resource about the NFP and how it determines equalization payments [PDF 243 kb] with sample calculations.
Getting legal and financial advice
There are many good reasons to get legal and financial advice as you work through a division of assets during a divorce or separation. These include:
- Helping remove emotions from the process.
- Helping you recover financially from a divorce or separation.
- Helping ensure you get a fair settlement. 65% of those who responded to a Canada Life survey and worked with an advisor felt their settlement was fair and equitable, compared to 35% who didn’t work with an advisor.