Matrimonial property rights
A: First of all, you were correct in your statement that a wife is entitled to a share of the property. Under our matrimonial property laws, the assumption is that property will be divided equally between the spouses. However, if such a division would be unfair, a court can divide property in other ways.
In deciding to divide property in less than equal shares, there are many factors that a court can consider including length of the marriage, the contribution made by one spouse to the other’s career, support received from third parties such as family in the acquisition of property, the fact that one party has sold off property, and tax liabilities.
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As well, the court can deduct from the division the fair market value of property brought to the
relationship.
Property covered by an interspousal contract can be exempted from division. In essence, this is a contract in which a married couple or a couple about to marry sets out how their property will be divided if the marriage ends.
A judge can ignore an interspousal contract if it is “unconscionable or grossly unfair.” As an obvious example, assume the husband and wife had a contract that stated the wife was not entitled to any interest in the farm.
However, in the 15 years that the marriage lasted the wife contributed over a third of her off-farm income to support the farm and often worked on the farm in the evenings and weekends. I suspect that in this case a judge would find the contract grossly unfair and award the wife a portion of the farm.
As well, in many provinces the law requires that for such contracts to be valid, each spouse must have obtained independent legal advice on the effect of the contract and must sign a statement to that effect.
Even after death, one spouse can apply to have property divided under the matrimonial property laws.
In addition to property rights, a spouse may be entitled to support from the other upon the breakup of a marriage. Whether the spouse will be entitled to support will depend on the question of whether the marriage rendered one spouse dependent on the other.
There are a number of factors a court will consider in making this determination. Those include: Was there a blending of financial entities? Did one spouse give up work opportunities to assist the other? What are the needs and ability to pay of each spouse? Did the spouses become accustomed to a certain lifestyle? While there are now guidelines to determine child support, there are no such guidelines when it comes to spousal support.
Finally, upon a spouse’s death, if the other spouse or child has not been adequately provided for, they can challenge any will under the Dependents Relief Act – the name varies from province to province. A court can overrule a will if adequate provision has not been made.
It sounds to me like you’ve allowed yourself to be bullied because you are afraid your marriage might fail. In my opinion, it’s better to have a failed marriage than to live a miserable and unhappy existence. I am sorry to hear that you haven’t been satisfied with the legal advice you’ve received. I suggest you see a different lawyer.
