In Canada, property acquired during a marriage or common-law relationship is generally considered “family property” or “matrimonial property”, and is subject to division upon separation or divorce. This includes assets such as the family home, investments, vehicles, and other property acquired during the marriage.
In some provinces, property acquired before the marriage or relationship may also be subject to division, depending on the length of the relationship and other factors.
The division of marital property usually occurs during a divorce or separation. Spouses must disclose all their assets and debts, and the court will then determine what property is considered marital property. Marital property includes any property acquired by either spouse during the marriage, with some exceptions such as gifts or inheritances that are not intended for both spouses.
What Are The Considerable Factors In Determination Of Marital Property?
Once the court determines what property is marital property, it will then consider several factors to determine how it will be divided. These factors may include the following:
- the length of the marriage,
- the contributions of each spouse to the marriage (including financial and non-financial contributions),
- the needs of each spouse, and
- the ability of each spouse to support themselves after the divorce.
In some cases, a prenuptial or postnuptial agreement may also be considered in determining the division of marital property. These agreements specify how property will be divided in the event of a divorce or separation and can override some of the default rules set out by provincial laws.
This blog post will discuss how marital property claims are decided where the property was held in joint tenancy by the couple. As such, this blog will make it clear through the case of Preskar Estate v. Wagner where the plaintiff made an application for the cessation of the joint tenancy of a marital property.
Marital Property – But Severed Before Separation?
The brief facts of Preskar Estate v. Wagner are that the plaintiff was the son of the deceased Peter Praskar. Plaintiff’s father passed away in January 2020. While the defendant in this case is the mother of the plaintiff.
Since 1994, the deceased and the defendant were in an intimate marriage-like relationship. It is pertinent to note that the deceased and the defendant were never formally married. In 1999, plaintiff was born from their relationship. The plaintiff’s mother had another son from a previous relationship and the defendant’s deceased husband maintained a parental relationship with that son as well.
In early 2000s, the couple bought a real estate property and were owning it jointly. All three; the deceased, the defendant, and the son lived together in that joint property. In 2006, the couple ceased living together in the marriage-like relationship. After separation, the defendant started residing at a separate place.
The Application For The Cessation Of Joint Tenancy Was Granted
The court in this instant case allowed the application and declared the property no longer to be held jointly. The joint tenancy of the previously joint property by the couple was severed and discontinued before the death of the deceased. The affidavit by the parties demonstrated that they had an acrimonious separation. The acrimony was accepted by both the parties but the claims in regard to the joint property were different.
The defendant’s claim was to grant relief in accordance with the Partition of Property Act. Now, the claims pertaining to the property were not resolved as per the affidavit evidence. The court considered that the separation had long occurred and outweighing the totality of the evidence would be inconsistent with the defendant’s part of affidavit evidence.
Not least of all, the third-party affidavit evidence given in support of the Defendant’s case revealed that a discussion did take place between the deceased and defendant, but still the affidavit provided no information as to the subject matter of that discussion.
Severing Property Before Separation
It is possible for married couples to sever their joint tenancy in marital property before they separate. Severing the joint tenancy means that each spouse becomes a tenant in common, which gives them each an individual interest in the property that is separate from the other spouse.
If marital property is severed before separation, it means that each spouse has a legal interest in the property that is separate from the other spouse. This means that each spouse can dispose of their interest in the property without the other spouse’s consent. For example, if one spouse wants to sell their share of the property, they can do so without the other spouse’s approval.
However, it is important to note that severing the joint tenancy does not necessarily mean that the property is no longer considered marital property. In many jurisdictions, the property will still be considered marital property, and the spouses will need to divide the property in the event of a divorce or separation. The fact that the joint tenancy was severed may affect how the property is divided, but it does not necessarily mean that one spouse will automatically receive a larger share of the property.
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