How Are Shares in Marital Property Determined After Divorce or Separation?
Why This Matters
When a marriage ends — whether through divorce, annulment, or separation of property — one of the most important issues is the division of assets. Clients often assume that everything is always split 50/50. While that is the starting point, the law also allows for exceptions. Understanding how these rules work can help you prepare for negotiations or court proceedings.
The General Rule: Equal Shares
As a rule, each spouse is entitled to an equal share of the marital property (also called the community estate). This includes property acquired during the marriage, regardless of which spouse earned the income or whose name appears on title documents.
Community property typically comes to an end when:
- the marriage is dissolved by divorce or annulment,
- one spouse passes away, or
- the spouses establish a separation of property during the marriage.
When Shares May Be Unequal
The court may decide that one spouse should receive more than half — but only in specific circumstances. To reach such a decision, the court must find both:
- "Important reasons" that make equal division unfair, and
- An unequal contribution by the spouses to building the marital property.
This is not about punishing one spouse for the breakdown of the marriage. Instead, it is about ensuring fairness in how the property is divided.
What Counts as a Contribution?
Contribution is not limited to salary or business income. It also includes:
- managing the household,
- raising children, and
- other non-financial efforts that supported the family's life and allowed the other spouse to earn income.
The courts recognise that running the household and caring for children is just as valuable as earning money outside the home.
However, for the shares to be unequal, there must be a clear and lasting imbalance — for example, one spouse making all the financial and domestic efforts while the other consistently fails to contribute.
What Are "Important Reasons"?
"Important reasons" are situations where equal division would be contrary to fairness and justice. Examples include:
- one spouse persistently refusing to support the family despite being able to do so,
- reckless financial behaviour, such as hidden risky investments that led to debts,
- committing property-related crimes that left the family financially burdened.
By contrast, factors such as illness or natural differences in income are not treated as "important reasons.
The Court's Decision and Its Effect
If the court decides on unequal shares, the ruling applies to the entire estate, not just to individual assets. In very serious cases, the court may even deny one spouse any share at all.
Importantly, the effect of such a judgment usually works retroactively — from the date the community property ended — rather than only from the date of the court's decision.
Common Practical Issues
Donations and inheritances:
If one spouse received a gift or inheritance that was placed into the marital property, this is generally treated as their contribution. However, the donor's intentions matter. If the gift was clearly meant only for one spouse, it may remain part of that spouse's personal property.
Income versus domestic work:
The court does not put a price tag on household work by comparing it to market rates for domestic services. In many cases, the value of managing the home and caring for children is greater than any paid service, since it allows the other spouse to focus on earning income.
Key Takeaways
Equal shares are the rule, but the court may decide otherwise if there are strong reasons. To award unequal shares, the court looks for both a significant imbalance in contributions and important reasons that make equal division unfair. The ruling covers the entire estate and usually applies retroactively from the date the community property ended. Non-financial contributions — such as household work and childcare — carry the same legal weight as financial income.
How We Can Help
Division of property after divorce or separation is rarely straightforward. It often involves complex questions about finances, contributions, and fairness. Our firm advises and represents clients in these matters, helping to build strong evidence and arguments for a fair outcome.
If you are facing a divorce or dispute about marital property, we invite you to contact us for a consultation.