(Unless otherwise noted, this summary does not apply to the Province of Quebec).

Matrimonial property is property owned by one or both of married spouses.

Under the old common law system, married women did not own matrimonial property. Upon marriage, husband and wife became a single person in the eyes of the law.

As William Blackstone reflected, in his 1756 Commentaries on the Law of England:

"By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorprated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything."

Unfortunately, only the husband could administer that person and the matrimonial property!

This silly state of affairs had some unusual consequences. For example, spouses could not sue each other.

All Canadian provinces have long since corrected this inequity by enacting legislation which allows married women to own property as if they were single.

Ancient common law also provided for a "widow's dower", in which a widow was guaranteed a third of the matrimonial property (which, incidentally, was lost if she committed adultery). Some, but not all provinces have abolished the widow's dower because modern family relations legislation adequately protects spouses (the four western provinces have kept this common law relic alive. Look for "Dower Act" in their statute collections.)

The western provinces also have unique "homestead legislation" which prohibits the sale of the family home without the consent of the wife (although Manitoba and Alberta provide the protection to the husband as well). These laws were developed in the early 1900s to control some of the ill-effects of the land boom in western Canada. Still on the books in Alberta, Manitoba, Saskatchewan and B.C., these laws also typically protect the family home from creditors or ensures that a surviving spouse can stay in the family home regardless of ownership. But it should be noted that every province (including Quebec), has special protection for the family home, although not necessarily under the auspices of so-called "homestead" legislation.

"Separation of property" is the legal regime which now applies in all provinces, meaning that each spouse fully owns whatever he or she purchases. However, ownership is often uncertain over time or if a joint bank account served as the source of the purchase.

Some provinces have a legal presumption whereby if property is bought by the husband and put in the name of the wife, then it is presumed to be a gift (the presumption can be rebutted). The law calls this a presumption of advancement.

This presumption operates only to the benefit of the wife and must be an outright gift. The case law is not consistent on the rebuttal of this presumption of advancement. For example, in one 1959 case, a wife threatened to leave her husband if he did not transfer title of their home to her. Well, he did but she left him anyway! The court held it as a valid gift, the ex-husband failing in his attempt to rebut the presumption by showing that it was not really a gift. In another case, the husband transferred property to his wife to hide the property from bankruptcy. The court did not care for the reason of the gift; it was a gift anyway. But in another case, where the wife apparently agreed to accept the "gift" for the sole purpose of defeating a creditor, the presumption was held to be rebutted and the transfer to the wife was cancelled.

In theory, separation of property regimes can be devastating to a spouse who neglects her career to raise the children, as she will be without a salary and therefore unable to acquire property in her name, while her husband would be able to do so.

In an attempt to address this inequity, some provinces (including, as of 1996, Ont., N.B., Nfld., N.S., P.E.I., Sask. and Yukon) have abolished the presumption of advancement and replaced it with a "trust" whereby the contribution of one spouse is held to be held in trust by the owning spouse.

But this legal solution has resulted in a legal mess. Some experts claim that it is not even a "trust" but, rather, a "remedial constructive trust" (see Pettkus v. Becker or Peter v. Beblow for a discussion on "constructive trust"). The distinction is important as the two possibilities imply different common law principles. Some things are clear, however:

  • Where legislation specifically establishes rules to determine the separation of matrimonial property, then there is no recourse to "constructive trust" common law. The statute law should prevail.
  • Readers should defer to professional legal sources in each province to ascertain their specific rights in matrimonial property situations. There is too much at stake to try to actually resolve your situation through general legal information material such as this. In addition, each province has unique matrimonial property division rules (which are sometimes in more than one law) which must be consulted in technical detail.
  • Signed property settlements or marriage contracts between separated spouses will prevail where they exist and will only be changed by a court of law if (1) there is a contract law flaw to the document, (2) if there is legislation which allows a court to alter a marriage contract or, (3) if the contract itself allows for judicial intervention. Some provinces allow their courts to overrule such a contract if it is "unfair". Section 51 of the B.C. Family Relations Act, for example, says that even if there is a valid marriage contract, the Supreme Court of B.C. may re-divide the assets on the basis of fairness (see discussion in Matrimonial Property Guidelines - British Columbia).
  • If a spouse dies, a court will first determine what matrimonial property belonged to the deceased and then apply the wills and estate rules to that property.

Note: Pensions are usually huge matrimonial property assets and often underestimated by inexperienced family law lawyers.