Skip to main content

The Great-West Life Assurance Company, London Life Insurance Company and The Canada Life Assurance Company have become one company – The Canada Life Assurance Company. Discover the new Canada Life

The Great-West Life Assurance Company, London Life Insurance Company and The Canada Life Assurance Company have become one company – The Canada Life Assurance Company. Discover the new Canada Life

Your web browser is out-of-date. For the best experience, please update to a modern browser like Chrome, Edge, Safari or Mozilla Firefox.

Freedom 55 Financial is a division of The Canada Life Assurance Company and the information you requested can be found here.

How are assets divided in divorce or separation?

Key takeaways

  • In most cases, property accumulated during the marriage will need to be split equally between the spouses.
  • Debts also need to be split equally between spouses.
  • Marriage contracts and cohabitation agreements can dictate a division of family property that is different than what the law provides.
  • Each situation is unique but it’s usually important to work through the process with legal advisors.

The basics

When it comes to dividing your property as part of your divorce or separation, generally each person continues to own any property acquired before the marriage. However, property acquired during the marriage and any increase in value during the marriage of assets acquired before the marriage, will need to be equally divided.

Every situation will be unique depending on what assets you have, what type of relationship you had, the province where you live, and what you and your partner may have agreed upon 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 division, depending on the applicable provincial law.

The general rule is that the net value of the family property (the value of the property owned by the spouses minus any debts and excluded property) be equally divided between both spouses in a divorce. However, the actual assets or value received by each partner will not always be the same and will vary depending on the circumstances of each case and the applicable provincial family law.

Types of assets and how they’re treated

You’ll usually need to split the value of these assets:

The value of these assets isn’t usually part of the family property to be split between partners:

  • Assets owned by a spouse 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

To increase the likelihood a marriage contract or cohabitation agreement will be binding and enforceable, both partners should sign the agreement in front of a witness.

Also, both partners should get independent legal advice from different lawyers and exchange financial information before signing a marriage contract or cohabitation agreement.

Once signed, both partners must abide by the agreement. 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 depends on the applicable provincial family law. Generally, however, each partner must first calculate their own net family property (NFP):

  • Total value of assets less any debts/liabilities at the separation date to calculate the separation date total
  • Total value of assets less any debts/liabilities at the marriage date to calculate the marriage date total
  • Calculate the final NFP by subtracting the marriage date total from the separation date total.

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.

Here some sample calculations to show you how this works:

Partner A

  • Separation date assets = $120,000
  • Separation date liabilities = $50,000
  • Separation date total (assets - liabilities) = $120,000 - $50,000 = $70,000
  • Marriage date assets = $30,000
  • Marriage date liabilities = $20,000
  • Marriage date total (assets - liabilities) = $30,000 - $20,000 = $10,000
  • NFP (separation date total - marriage date total) = $70,000 - $10,000 = $60,000

Partner B

  • Separation date assets = $200,000
  • Separation date liabilities = $100,000
  • Separation date total (assets - liabilities) = $200,000 - $100,000 = $100,000
  • Marriage date assets = $40,000
  • Marriage date liabilities = $20,000
  • Marriage date total (assets - liabilities) = $40,000 - $20,000 = $20,000
  • NFP (separation date total - marriage date total) = $100,000 - $20,000 = $80,000

NFP Partner B $80 000 - NFP Partner A $60,000 = $20,000

Partner B pays $10,000 (half of the difference between NFPs) to Partner A as an equalization payment.

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:

What's next?

Now that you have an idea about how assets are divided in a divorce or separation, why not meet with an advisor to:

  • Help calculate your net family property.
  • Work on a post-divorce or separation budget.
  • Build a plan to achieve your post-divorce or separation saving goals.
  • Discuss estate planning changes.

This information is general in nature and is intended for informational purposes only. For specific situations you should consult the appropriate legal, accounting or tax advisor.

Related articles