According to the Family Law Act, when a married couple gets divorced, the full value of the matrimonial home is divided equally between them. This is the case even if one party had purchased the home before the marriage. This is the only major asset treated this way in a divorce. Typically for other property and assets brought into a marriage, it is only the increase in value since the date of marriage that is divided equally.

But what if you’ve only been married for a short time? If you came into the marriage with a home you paid for and other significant assets, the equalization process can seem unfair.

I was involved in one case where the bride married someone that had just come out of bankruptcy. The marriage lasted less than 2 years and during that time they had built a new house. But because of his bankruptcy, this was all done with her funds and both the mortgage and title were in her name only.

When they divorced, he wanted half of everything. She was informed by her lawyer that a short-term marriage (anything less than 5 years) without children or any financial investment on his part was open to interpretation by the courts. In the end, he got 20% of what thought he was entitled to…and far more than he deserved in her opinion.

A short marriage on its own does not automatically mean there could be an uneven division of property. The court must determine that equalization would be more than unfair or unjust based on the circumstances.

The Family Law Act (Section 5(6)) provides room for the courts to award an unequal division of property where it is deemed “unconscionable” in the circumstances. Factors that can influence this decision include:



• if the matrimonial home was purchased prior to the marriage and what contributions, if any, were made by the new spouse who is not on title
• whether improvements were made to the property during the marriage
• what financial contributions the other spouse made to the marriage
• if there are children from the marriage

However, the threshold is high when determining whether an equal division of property is unconscionable. It is at the discretion of the court to determine this and the judge will rely on the evidence and facts presented. In the case mentioned, she had to prove without a doubt, that she was the sole financial contributor to the home. And as she was able to amass enough evidence, the judge agreed.

If you are getting divorced after less than 5 years of marriage and are concerned that your ex-spouse will be getting a disproportionate share of the marital property, it is important that you speak to a family law attorney about your situation.