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The Marital Property Act
This is an unofficial archived version of The Marital Property Act
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. M45

The Marital Property Act

WHEREAS marriage is an institution of shared responsibilities and obligations between parties recognized as enjoying equal rights;

WHEREAS it is advisable to provide for a presumption, in the event of the breakdown of the marriage, of equal sharing of the family and commercial assets of the parties to the marriage acquired by them during the marriage;

THEREFORE, HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions.

1(1)

In this Act,

"asset" means any real or personal property or legal or equitable interest therein including, without restricting the generality of the foregoing, a chose in action, money, jewelry and a marital home, but not including any article of personal apparel; ("élément d'actif' )

"commercial asset" means an asset that is not a family asset; ("élément d'actif commercial")

"dissipation" means the jeopardizing of the financial security of a household by the gross and irresponsible squandering of an asset; ("dilapidation")

"family asset" means an asset owned by two spouses or either of them and used for shelter or transportation, or for household, educational, recreational, social or aesthetic purposes, including, without restricting the generality of the foregoing,

(a) a marital home,

(b) money in a savings account, chequing account or current account with a bank, trust company, credit union or other financial institution where the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes, and saving bonds and deposit receipts intended to be used for those purposes,

(c) where an asset owned by a corporation, partnership or trustee would, if it were owned by a spouse, be a family asset, shares in the corporation or an interest in the partnership or trust owned by the spouse having a market value equal to the value of the benefit the spouse has in respect of the asset,

(d) an asset over which a spouse has, either alone or in conjunction with another person, a power of appointment exercisable in favour of the spouse, if the asset would be a family asset if it were owned by the spouse, and

(e) an asset disposed of by a spouse but over which the spouse has, either alone or in conjunction with another person, a power to revoke the disposition or a power to use or dispose of the asset, if the asset would be a family asset if it were owned by the spouse; ("élément d'actif familial")

"marital home" means property in which a spouse has an interest and that is or has been occupied by the spouses as their family residence and, where the property that includes the family residence is normally used for a purpose other than residential only, includes only the portion of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence, and where the property is owned by a corporation in which a spouse owns shares that entitle the spouse to occupy the property that spouse has an interest in the property: ("foyer matrimonial")

"spousal agreement" means

(a) any marriage contract or marital agreement, or

(b) any separation agreement, or

(c) release or quit claim deed,

in writing, or any other written agreement or other writing between spouses, made within Manitoba or elsewhere before or after the coming into force of this Act and either during marriage or contemplation of marriage, affecting all or any of the assets of the spouses in a manner described in section 5; ("convention entre conjoints" )

"spouse" where used in relation to another spouse means the person who is married to that other spouse, and "spouses" means two persons who are married to each other. ("conjoint")

Life insurance, pension plans, etc.

1(2)

Notwithstanding the definition of family asset but subject to subsection (3), the following assets are family assets within the meaning and for the purposes of this Act, whether or not the proceeds thereof or the benefits or payments thereunder, as the case may be, are used or intended to be used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes:

(a) Rights under a life insurance policy.

(b) Rights under an accident and sickness insurance policy.

(c) Rights under a life or fixed term annuity policy.

(d) Rights under a pension or superannuation scheme or plan.

Insurance for business purpose.

1(3)

A life insurance policy or an accident and sickness insurance policy is not a family asset within the meaning and for the purposes of this Act where the purpose of the policy is to provide funds that the beneficiary of the policy will likely require, or compensation for loss that the beneficiary of the policy will likely suffer, in respect of a business undertaking, in the event and as a result of the death, injury, illness, disability or incapacity of the person insured.

PART I

APPLICATION OF ACT

DIVISION 1 APPLICATION TO SPOUSES

Married persons.

2(1)

Except as herein otherwise provided, this Act applies to all spouses, whether married before or after the coming into force of this Act and whether married within Manitoba or a jurisdiction outside of Manitoba,

(a) if the habitual residence of both spouses is in Manitoba; or

(b) where each of the spouses has a different habitual residence, if the last common habitual residence of the spouses was in Manitoba; or

(c) where each of the spouses has a different habitual residence and the spouses have not established a common habitual residence since the solemnization of their marriage, if the habitual residence of both at the time of the solemnization was in Manitoba.

Voidable marriages.

2(2)

A voidable marriage that is annulled subsequent to the solemnization thereof is, prior to and until the annulment, a subsisting marriage for the purposes of subsection (1).

Void marriages.

2(3)

This Act applies to the parties to a marriage that is void ab initio, but applies only so long as the parties believe the marriage to be valid; and, if either party knows or has reason to believe when the marriage is solemnized that it is void, that party is not entitled to any benefit under this Act.

Spouses living separately on May 6, 1977.

2(4)

This Act does not apply to spouses who were living separate and apart from each other on May 6, 1977, unless those spouses, after that date, resume cohabitation for a period of more than 90 days.

DIVISION 2

APPLICATION TO ASSETS

Assets generally.

3

Where this Act applies to a spouse under section 2 it also applies to every asset of the spouse except as herein otherwise provided, and where this Act does not apply to a spouse by reason of any provision of section 2 it also does not apply to any asset of the spouse notwithstanding any other provision of the Act.

Assets acquired during marriage and cohabitation.

4(1)

This Act does not apply to any asset acquired by a spouse

(a) while married to but living separate and apart from the other spouse; or

(b) while married to a former spouse unless the asset was acquired while living separate and apart from the former spouse and it can be shown that the asset was acquired in contemplation of marriage to the present spouse; or

(c) while unmarried.

Assets acquired before marriage.

4(2)

Notwithstanding clause (1)(c), this Act applies to any asset acquired by a spouse prior to but in specific contemplation of the marriage to the other spouse.

Appreciation, depreciation, income.

4(3)

Where by reason of any provision of subsection (1) this Act does not apply to an asset of a spouse, then, with respect to all assets other than those exempted from the application of this Act by section 7, in any accounting under Part II, notwithstanding that provision,

(a) any appreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse shall be added to the inventory of assets of that spouse;

(b)any depreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse shall be deducted from the inventory of assets of that spouse; and

(c) any income from the asset earned while the spouse was married to and cohabiting with the other spouse shall be treated in the same way as income from an asset to which this Act applies.

Negative value.

4(4)

Where under subsection (3) the combined depreciation in all assets of a spouse exceeds the combined value of any appreciation in and income from those assets, the excessive portion of the depreciation shall not be deducted except pursuant to the order of a court made upon an application under Part III.

Assets disposed of by spousal agreement.

5(1)

This Act does not apply to any asset disposed of by a spousal agreement or as to which the Act is made inapplicable by the terms of a spousal agreement, but where a spousal agreement is silent as to an asset this Act if otherwise applicable to the asset applies as if the spousal agreement did not exist.

Provision of Act made inapplicable by agreement.

5(2)

Where a spousal agreement by its terms makes a provision of this Act inapplicable to an asset, that provision does not apply to the asset but the remaining provisions of the Act if otherwise applicable to the asset apply as if the spousal agreement did not exist.

Provision of Act varied by agreement.

5(3)

Where a spousal agreement by its terms varies any provision of this Act in its application to an asset, that provision if otherwise applicable to the asset applies as varied and the remaining provisions of the Act if otherwise applicable to the asset apply in unaltered form.

Disposal of assets.

6(1)

No provision of this Act, nor the giving of an accounting under Part II, vests any title to or interest in any asset of one spouse in the other spouse, and the spouse who owns the asset may, subject to subsections (7), (8), (9) and (10) and to any order of a court made under Part III, sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with or dispose of the asset to all intents and purposes as if this Act had not been passed.

Use of marital home.

6(2)

Notwithstanding subsection (1), spouses each have an equal right to the use and enjoyment of their marital home, but the right is subject to any order of a court

(a) made under The Family Maintenance Act; or

(b) made in or as incidental or ancillary to a proceeding in a matrimonial cause as defined in The Queen's Bench Act;

whereby one spouse is given possession of the marital home to the exclusion of the other.

Use of other family assets.

6(3)

Notwithstanding subsection (1), spouses each have an equal right to the use and enjoyment of any family asset, other than their marital home, that is ordinarily used or enjoyed by both of them.

Asset transferred, etc.

6(4)

Subject to subsections (7), (8), (9) and (10) and to any order of a court made under Part III, this Act does not apply to an asset that a spouse no longer owns as at the closing date established for any accounting under Part II in which the asset would otherwise have been included under the Act.

Proceeds of sale.

6(5)

Where this Act does not apply to an asset, it does not apply as well to the proceeds of sale of the asset or to any other asset acquired in exchange for or purchased with the proceeds of sale of the asset, except where

(a) the proceeds are used to acquire a family asset; or

(b) the asset acquired in exchange is a family asset.

Proceeds of sale.

6(6)

Where this Act applies to an asset, it applies as well to the proceeds of sale of the asset and to any other asset acquired in exchange for or purchased with the proceeds of sale of the asset.

Dissipation of asset.

6(7)

Where

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, dissipates an asset in whole or in part; and

(b)the other spouse, before the expiry of two years from the date of the dissipation referred to in clause (a) or from the date of the discovery thereof, applies to a court under Part III for an accounting and division of assets;

the value of the dissipated asset or the dissipated portion thereof, as the case may be, shall be added to the inventory of assets of the spouse in the accounting.

Excessive gift.

6(8)

Where

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person by way of gift, and the gift is excessive in whole or in part; and

(b) the other spouse, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to a court under Part III for an accounting and division of assets;

the value of the asset or the excessive portion thereof, as the case may be, shall be added to the inventory of assets of the spouse in the accounting.

Transfer for inadequate consideration.

6(9)

Where

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person for inadequate consideration;

(b) the transfer referred to in clause (a) is effected by the spouse with the intention of defeating the rights of the other spouse under this Act; and

(c) the other spouse, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to a court under Part III for an accounting and division of assets;

the amount of the inadequacy in the consideration shall be added to the inventory of assets of the spouse in the accounting.

Recovery from recipient.

6(10)

In the circumstances described in subsection (8) or (9), where the spouse effecting the transfer is unable to satisfy any amount payable to the other spouse upon a division of assets under Part II, recovery of the value of the excessive gift or excessive portion of the gift or of the amount of the inadequacy in consideration, up to the total of the unsatisfied amount or unsatisfied portion of the amount payable upon the division, may be made from the transferee of the asset by application to a court under Part III.

Application of subsec. (10).

6(11)

In the circumstances described in subsection (9), subsection (10) does not apply if the court is satisfied that the transferee acted bona fide and without knowledge that the transfer was effected with the intention described in clause (9)(b).

Gift, trust benefit.

7(1)

This Act does not apply to any asset acquired by a spouse by way of gift or trust benefit from a third person, unless it can be shown that the gift or benefit was conferred with the intention of benefiting both spouses.

Gift of insurance premiums.

7(2)

This Act does not apply to the proceeds of the surrender or the cash surrender value of any insurance policy where the premiums of the policy were paid by a third person by way of gift in favour of a spouse, unless it can be shown that the premiums were paid with the intention of benefiting both spouses.

Inheritance.

7(3)

This Act does not apply to any asset acquired by a spouse by way of inheritance, unless it can be shown that the inheritance was devised or bequeathed with the intention of benefiting both spouses.

Income, appreciation, depreciation.

7(4)

Any income from, or appreciation or depreciation in the value of, an asset acquired in the manner described in subsection (1), (2) or (3) shall not be included in any accounting under Part II, unless it can be shown that the gift was conferred or the inheritance devised or bequeathed, as the case may be, with the intention that the income or appreciation should benefit both spouses.

Exception.

7(5)

Notwithstanding subsection (4), any income from or appreciation in the value of an asset acquired in the manner described in subsection (1), (2) or (3), shall be included in any accounting under Part II, if the income or appreciation is used for the purchase of a family asset.

Damage award for personal injury.

8(1)

This Act does not apply to the proceeds of any damage award or settlement or insurance claim made in favour of a spouse for personal injury, or disability, except to the extent that the proceeds are compensation for loss to both spouses.

Insurance claim for damage to asset.

8(2)

The proceeds of any insurance claim for loss or damage to an asset shall be deemed to be proceeds from the sale of the asset.

Assets in form of rights.

9(1)

Where this Act applies to an asset, it applies

(a) notwithstanding that the asset consists of mere rights, whether present, future or contingent; and

(b) notwithstanding that, as at the closing and valuation date of an accounting under section 15 in which the rights are sought to be included as an asset, the rights have not been realized and it is not ascertainable whether they will ever be realized or to what extent they will be realized;

but the Act does not apply where it is in fact ascertained, as at the closing and valuation date, that there is no reasonable possibility of the rights ever being realized.

Life insurance pension plans, etc.

9(2)

In subsection (1), the expression "rights" includes, without restricting the generality of that expression, rights under

(a) a life insurance policy; or

(b) an accident and sickness insurance policy; or

(c) a life or fixed term annuity policy; or

(d) a pension or superannuation scheme or plan.

Asset already shared.

10

This Act does not apply to any asset that has already been shared equally between spouses, or that is acquired by one spouse from the other by virtue of a sharing of assets under this Act.

Liabilities.

11(1)

In any accounting under Part II, the liabilities of a spouse other than those relating to assets that are exempt from the accounting by sections 4 and 7 shall be deducted from the total inventory of the assets of that spouse.

Negative value.

11(2)

Subsection (1) does not permit a deduction of debts and liabilities resulting in a negative value, except where a court upon an application under Part III so orders.

Foreign asset.

12

The value of an asset situated outside of Manitoba shall be taken into consideration in an accounting and division under Part II.

PART II

SHARING OF ASSETS

Right to accounting and equalization.

13

Subject to section 14, spouses each have the right upon application to have an accounting of assets under section 15 and an equalization of assets under section 17.

Discretion to vary equal division of family assets.

14(1)

A court upon the application of either spouse under Part III may order that, with respect to the family assets of the spouses, the amount shown by an accounting under section 15 to be payable by one spouse to the other be altered if the court is satisfied that equalization would be grossly unfair or unconscionable having regard to any extraordinary financial or other circumstances of the spouses or the extraordinary nature or value of any of their assets.

Discretion to vary equal division of commercial assets.

14(2)

A court upon the application of either spouse under Part III may order that, with respect to the commercial assets of the spouses, the amount shown by an accounting under section 15 to be payable by one spouse to the other be altered if the court is satisfied that equalization would be clearly inequitable having regard to any circumstances the court deems relevant including

(a) the unreasonable impoverishment by either spouse of the family assets;

(b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred;

(c) any spousal agreement between the spouses;

(d) the length of time that the spouses have cohabited with each other during their marriage;

(e) the length of time that the spouses have lived separate and apart from each other during their marriage;

(f) whether either spouse has assets of an extraordinary value to which this Act does not apply by reason of their having been acquired by way of gift or inheritance;

(g) the nature of the assets; and

(h) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the marriage.

Conduct not a factor.

14(3)

In exercising its discretion under this section, no court shall have regard to conduct on the part of a spouse unless that conduct amounts to dissipation.

Accounting and division.

15(1)

In an accounting of assets between spouses under this Part, there shall be ascertained

(a) the value of the total inventory of assets of each spouse, after adding to or deducting from the inventory such amounts as are required under this Act to be added or deducted;

(b) the value of the share to which each spouse is entitled upon the division, to be determined by combining the values ascertained under clause (a) and dividing the total into two equal shares or such other shares as a court may under section 14 order; and

(c) the amount payable by one spouse to the other in order to satisfy the share of each spouse as determined under clause (b).

Fair market value.

15(2)

The value of any asset for the purposes of subsection (1) shall be the amount that the asset might reasonably be expected to realize if sold in the open market by a willing seller to a willing buyer.

Valuation of non-marketabie assets.

15(3)

Where an asset is by its nature not a marketable item, subsection (2) does not apply and the value of the asset for the purposes of subsection (1) shall be determined on such other basis or by such other means as is appropriate for assets of that nature.

Closing and valuation dates.

16

In any accounting under section 15, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability shall be as the spouses may agree and, in the absence of agreement,

(a) the date when the spouses last cohabited with each other; or

(b) where the spouses continue to cohabit with each other, the date either of them makes an application to a court under Part III for an accounting of assets.

Method of payment.

17

The amount shown by an accounting under section 15 to be payable by one spouse to the other may be satisfied

(a) by payment of the amount in a lump sum or by instalments; or

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by any combination of clauses (a) and (b);

as the spouses may agree or, in the absence of agreement, as a court upon the application of either spouse under Part III may order.

PART III

ENFORCEMENT

Applications to court.

18(1)

In any question or dispute arising under this Act or where there is a breach of a provision of this Act, the spouses affected or either of them may apply to the Court of Queen's Bench and the court may make such order or give such judgment with respect to the application and the costs thereof as it thinks fit, or may direct the application to stand over from time to time and an inquiry or issue touching the matters raised in the application to be made or tried in such manner as it thinks fit.

Hearings in private.

18(2)

A court hearing an application under this section may exclude all or any members of the public from the court room for all or part of the proceedings.

Applicant's statement of assets and liabilities

18(3)

A spouse shall at the time of making an application under this Part file with the court a sworn statement disclosing all assets and liabilities of that spouse whether or not they are shareable under this Act and a valuation thereof and shall serve the statement upon the respondent.

Respondent's statement of assets and liabilities.

18(4)

The respondent shall within 14 days of being served with a statement under subsection (3), or within such further period as the spouses may agree to or a judge on application may allow, file and serve on the applicant a sworn statement disclosing all the respondent's assets and liabilities whether or not they are shareable under this Act and a valuation thereof.

Limitation period on death.

19(1)

Where a right to a division of assets arises in favour of a spouse under this Act other than upon the granting of a decree absolute of divorce or a decree of nullity of marriage and the other spouse subsequently dies, no action in respect of the right shall be commenced against the estate of the deceased spouse after six months from the date of death.

Limitation period on divorce and nullity.

19(2)

Where a right to a division of assets arises under this Act upon the granting of a certificate of divorce or a decree of nullity of a marriage, no action in respect of the right shall be commenced under section 18 after 60 days from the date that all appeals against the certificate or the decree are exhausted or, if no appeals are taken, from the date that the time for appeal expires.

Saving provision.

19(3)

Where a person is prevented

(a) by lack of knowledge of the occurrence of a death or of the date thereof; or

(b) by lack of knowledge of the granting of a certificate of divorce or a decree of nullity of a marriage or of the date thereof; or

(c) by uncontrollable circumstances;

as the case may be, from commencing an action within the applicable limitation period fixed in subsections (1) and (2), a court may extend the limitation period by such length of time as it deems fit.

Time for complying with order.

20(1)

Where under section 18 a court makes an order or gives judgment against a spouse for the payment of money or the transfer, conveyance or delivery of an asset and the court is satisfied that immediate compliance with the order or judgment will work a hardship upon the spouse or is otherwise inexpedient, the court may order that the payment be made by instalments, with or without interest, or may otherwise allow the spouse such time, with or without interest, in which to comply with the order or judgment as the court deems reasonable and may make such further order as it thinks fit to secure the payment.

Order for sale.

20(2)

Where under section 18 a court makes an order or gives judgment against a spouse for the payment of money, the court may further order that a specified asset or specified assets of the spouse be sold and that the payment be made out of the proceeds of sale.

Interest where equitable.

20(3)

On making an order for one spouse to pay an amount under section 17 or on application the court, if satisfied that it is equitable under the circumstances, may order that spouse to pay interest on all or a portion of the amount at a rate fixed by the court and calculated from a date which is not earlier than the valuation date established under section 16.

Order for preservation of assets.

21(1)

Upon an application to a court under section 18 alleging any of the grounds authorized under subsection (2), the court, for the purpose of preserving the assets of a spouse,

(a) may make a receiving order against all or any of the assets; or

(b) may make an order directing the spouse not to part with the possession of and to preserve the assets or any of them; or

(c) where the application is made in the course of a pending action or proceeding under section 18 and any of the assets is in the form of a title to or an interest in land, may, notwithstanding that the title or interest is not being brought in question in the action or proceeding within the meaning of subsection 85(1) of The Queen's Bench Act, make an order for the issue of a certificate of lis pendens in respect of the title or interest; or

(d) may make such other order as it thinks fit.

Grounds for order.

21(2)

An order under subsection (1) may be made by a court upon any ground alleged against a spouse that the court deems sufficient including, without restricting the generality of the foregoing, the ground

(a) that the spouse has committed or is about to commit an act amounting to dissipation; or

(b) that the spouse is about to abscond with assets.

Ex parte order.

21(3)

An order under this section may be made ex parte.

Burden of proof.

22

In any proceeding under section 18, the spouse claiming that this Act or a provision thereof does not apply to an asset has the onus of so proving.

Onus of proof in dissipation proceeding.

23

In any proceeding under section 18, the onus of proof that a spouse has committed an act amounting to dissipation is upon the spouse alleging it.

PART IV

GENERAL

Dower Act.

24(1)

Subject to subsection (2), the rights given under this Act are in addition to and not in substitution for or in derogation of the rights given under The Dower Act.

Expiry of rights on death of spouse.

24(2)

The rights under this Act of a spouse who has rights under The Dower Act expire upon the death of the other spouse.