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Separate Property

A marriage property legal term; property acquired before or during a marriage, or otherwise owned by a married person and which, notwithstanding the marriage or, where recognized, a marriage-like relationship, remains the separate property of one or the other of the spouses who acquired or to whom was gifted the item of property.

In the event of a permanent separation or divorce, the law provides for the fair division of property or assets acquired by the spouses during their period of cohabitation.

Traditionally, a wife had few property rights. In the eyes of the law, historically, she was absorbed within the legal person of her husband and thus, upon divorce, had no entitlement to jointly-enjoyed family property.

This common law injustice required adjustment. To accommodate the inequity of the common law towards childbearing, child-rearing and homemaking mothers who, during those years, were unable contribute financially towards the acquisition of income or family assets or, as a consequence, be placed on title thereof, statute law eventually gave women the right to hold separate income or property.

This being still insufficient, common law jurisdictions have since adopted one or the other, or permutations of each or both, two basic but distinct family property regimes.

In a nutshell, community property regimes create a legal presumption that all income or every asset acquired by either spouse during the marriage belongs equally to both. This regime is also called “community of property” or “marital property”.

Although subject to statutory distinctions in most jurisdictions, the general rule in community property jurisdictions is that each spouse has an equal entitlement to a half interest as tenant-in-common to any asset or income acquired during the marriage.

In the alternative, a separate property regime, the legal presumption is that individual assets, incomes or pensions belong to whichever spouse paid for it, earned it, is on title or to whom the asset was gifted and is not subject to sharing with the other spouse.

Many community property jurisdictions give married persons the ability to opt-out of a community property regime and instead, opt-into a separate property regime, by way of a marriage contract or agreement or, usually with compensation in regards to other entitlements, by way of a separation agreement.

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.

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