Matrimonial Property Act Flashcards
(28 cards)
Provisions governing who the act applies to
s 2 - legally married persons, and ‘domestic partnerships’ registered under s 53 of the NS Vital Statistics Act
s 23 - parties can contract out of the MPA
Provision listing ‘triggering events’
s 12 - DADS+ D - Divorce A - Application for nullification D - Death S - Separation \+ - the cancelling of a 'domestic partnership' per s 53 of the NS Vital Statistics Act
Rights of spouse during lifetime
s 6 - right to equal possession of the matrimonial home
s 8 - disposal or encumbrance of the home requires mutual consent
s 8(2) - right to set aside any non-consensual disposal or encumbrance
Definition of ‘matrimonial home’
s 3 - primary residence for the family (not a lease)
Definition of ‘matrimonial assets’
s 4 - all assets acquired before or during the marriage
Exceptions to ‘matrimonial assets’
s 4(1) GSIPBP
G - gifts and inheritances not used by both spouses
S - settlements from a court hearing
I - insurance claims
P - personal property
B - Business assets (but see s 18)
P - post-separation property (except reconciliation)
How can post-separation property be a ‘matrimonial asset’?
Under s 4 the couple has to have resumed co-habitation for 90 days for the purpose of reconciliation.
Provision governing disbursement of matrimonial property (and case)
s 13
- default is 50/50, but court can award in unequal shares if it is deemed more equitable (Leblanc)
How can business assets be included as marital property?
s 18 - if the other spouse made a substantial contribution to the business then can be awarded a percentage of the business value according to their contribution
Section 2 and 23 …
Defines who benefits from the MPA
- married couples
- ‘domestic partnerships’ registered under s 53 of the NS Vital Statistics Act
- s 23 says couples can contract out of the MPA
Section 12 …
Triggering events (DADS+) D - Death A - Application for nullity D - Divorce S - Separation \+ - de-registered 'domestic partnership's under s 53 of the NS VItal Statistics Act
Sections 6-8 …
Rights of spouses during the relationship
s 6 - right of equal possession of the matrimonial home
s 8 - home cannot be encumbered or dispersed without mutual consent, spouse can cancel if this happens per s 8(2)
Section 3 …
Definition of “matrimonial home”
- primary family residence (not a lease)
Section 4 …
Definition of “matrimonial assets”
- all property acquired before and during the marriage
Section 4(1) …
Exceptions to ‘matrimonial assets’ (GSIPBP)
G - gifts and inheritances not enjoyed by both parties
S - settlement from a court
I - insurance settlement
P - personal property
B - business assets (but see s 18)
P - post-separation property
Section 13 …
Results of matrimonial property
- default is 50/50, but courts can award an unequal share if it is more equitable (Leblanc)
Section 18 …
Exception to business assets
- if one spouse makes substantial contribution, then they can be awarded a % of the business value according to their contribution
Unmarried and unregistered couples are not covered by the Matrimonial Property Act (authority)
Walsh
- must apply instead for common law remedy of resulting trust or remedial constructive trust
Resulting Trust (authority and test)
Murdoch
1. Legal title in one spouse’s name
2. Common intention to share title
= Title-holding spouse holds share of the property in equity for the spouse.
- case suggests that monetary contribution is necessary way to show common intention
Remedial Constructive Trust (authority and test)
Pettkus
- must show unjust enrichment:
1. an enrichment of one party
2. a corresponding deprivation of another (usually restrictions on what kind of job they can get)
3. absence of a ‘juridical reason’
= monetary or property reward
Bonus: first shows up in Laskin’s dissent in Murdoch, adopted by the minority in Rathwell, finally applied in Pettkus.
How can you get a proprietary reward from a remedial constructive trust?
- (Pettkus, Sorochan) show a direct and substantial connection between the spouse’s contributions and the property
- (Peter) show that a monetary award would be insufficient in the circumstances
How can you get a monetary reward from a remedial constructive trust?
(Kerr)
1. show a ‘joint family venture’ by (MEAP)
M - mutual effort
E - economic integration
A - actual intention
P - priority of family
2. show a link between contribution and accumulation of wealth
Walsh
Unmarried and unregistered couples do not benefit under the Matrimonial Property Act and must instead seek common law remedies of resulting trust or remedial constructive trust.
Murdoch
Resulting Trust
1. Legal title in spouse’s name only
2. Common intention to share the title
= Title-holding spouse holds portion in trust for the spouse (equitable title)
- this case suggests that common intention is inferred from contribution, and usually only a monetary contribution will do
