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MacLean Law Wins Cases

Calgary Exempt Matrimonial Property Division deals with:

  1. Calgary matrimonial property that is to be equally divided;
  2. Calgary exempt property that is not to be divided; and
  3. Calgary increases in value on exempt property that is to be equitably divided.

Calgary Exempt Matrimonial Property Division

“High Net Worth Divorce” – What’s not included in Matrimonial Property?

Division of matrimonial property is a huge issue when couples are separating or divorcing. The higher the net worth of the couple, the greater the issue becomes. In previous articles on division of matrimonial property, I mentioned there are several classes of property that are taken out of the total amount of divisible matrimonial property, called “exemptions”.  In this article Peter Graburn of our Calgary exempt matrimonial property division lawyers will expand on this class of property and discuss other issues involved in exempt property. Contact us today.

But what is included in “matrimonial property”? Obviously, the family home, cars, cabins, cottages, and other property couples use and share together are matrimonial property. But what about other property that is not typically used and shared together – investments, businesses, pensions – are these all matrimonial property? Absolutely.  But is all this property shared equally? Not necessarily.

Calgary Exempt Matrimonial Property Division – Different Property Division Rules

So how is this matrimonial property divided? In Alberta, the Matrimonial Property Act (MPA – the legislation that determines how property will be divided for married couples on divorce – it does not apply to “common-law” couples – yet!) generally classifies matrimonial property to be divided on separation and divorce into three categories:

Equally (50/50) distributed – this is the basic presumptive rule on how all matrimonial property acquired during the marriage, no matter whose name it is held in, will be divided (unless it falls into one of the two following categories);

Not distributed – as it is “exempt”;

Equitably distributed – distributed in a “just and equitable manner” (ie. the increase in value of exempt property, and property acquired with income from exempt property or a gift from the other spouse).  Section 8 of the MPA sets out 12 specific factors the Court should consider in dividing this property applying the “just and equitable” rule.

Calgary Exempt Matrimonial Property Division – Is Anything Not Divided?

But what property is specifically excluded from distribution? Some property is so personal it should not be considered as joint, matrimonial property. Section 7(2) of the MPA states that the following classes of property are exempt from distribution:

Gifts (from third parties) – gifts received by one spouse alone from family, friends and others (not from your spouse) after the date of marriage are exempt from distribution as matrimonial property – gifts received from the other spouse are included in divisible matrimonial property;    

Inheritance – similarly, property received from family, friends and others on their death after the date of marriage is also exempt;

Court Judgements and Insurance Proceeds – a Court awarded (or settlement) amount for damages in tort law (ie. damages for personal injuries suffered in a motor vehicle accident) or proceeds of a life insurance policy payable to one spouse alone (not both spouses together) are also exempt from distribution as matrimonial property;

Value of Property at Time of Marriage – generally, the value of all property brought into the marriage at that time is also exempt from distribution as matrimonial property.

Calgary Exempt Matrimonial Property Division -Anything Else?

Simple, right? Hold on – there are other issues to consider, such as:

Tracing – what if the exempt property has been sold and the sale proceeds used to buy something else? As long as the property can be traced (with documentary evidence) into other property, that property will retain its exempt status;

Mixing – if the exempt property is mixed with other family property (ie. placed into a joint bank account) and used for general family expenses (ie. clothing, groceries, trips, etc.), it may lose its exempt status;

Form of Registration – if real estate is purchased with exempt property and placed in both spouses’ names, it may lose some of its exempt status;

Property Contracts – of course much (but not necessarily all) uncertainty regarding what property is exempt from division on separation and divorce can be reduced by a properly prepared and signed agreement, either before (ie. cohabitation or prenuptial agreements) or after marriage (separation agreement).  The MPA clearly acknowledges the spouses’ right and ability to make their own decisions (on certain conditions) regarding the division of their matrimonial property.

Top* Calgary Exempt Matrimonial Property Division Lawyers

Of course, there are still many other issues (ie. valuation date, financial disclosure, dissipation of property, etc. – just to name a few) that must also be considered on the division of matrimonial property. Consulting one of our top rated* senior Calgary family lawyers is the preferred option. Division of matrimonial property (particularly if it is high net-wealth property) is sometimes a multi-facetted and complicated issue. 

Calgary High-Net Worth Exempt Property Lawyers know the many classes of property and other issues involved in determining what is and (sometimes more importantly) what is not included in division of matrimonial property, to assist their High-Net Worth clients understand this often significant distinction.

We handle appeals to the Alberta Court of Appeal and Supreme Court of Canada.

When you are ready to get started, call Peter at 403-444-5503 today.

*Top Choice Award (2014, 2016, 2017 2018, 2019), Top rated reviews on Google, Yelp, threebestrated, lawerratingz.com. Read more about our awards.