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Property - Module III > Matrimonial Property Act > Flashcards

Matrimonial Property Act Flashcards

1
Q

Provisions governing who the act applies to

A

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

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2
Q

Provision listing ‘triggering events’

A 
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
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3
Q

Rights of spouse during lifetime

A

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

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4
Q

Definition of ‘matrimonial home’

A

s 3 - primary residence for the family (not a lease)

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5
Q

Definition of ‘matrimonial assets’

A

s 4 - all assets acquired before or during the marriage

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6
Q

Exceptions to ‘matrimonial assets’

A

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)

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7
Q

How can post-separation property be a ‘matrimonial asset’?

A

Under s 4 the couple has to have resumed co-habitation for 90 days for the purpose of reconciliation.

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8
Q

Provision governing disbursement of matrimonial property (and case)

A

s 13

- default is 50/50, but court can award in unequal shares if it is deemed more equitable (Leblanc)

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9
Q

How can business assets be included as marital property?

A

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

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10
Q

Section 2 and 23 …

A

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
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11
Q

Section 12 …

A 
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
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12
Q

Sections 6-8 …

A

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)

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13
Q

Section 3 …

A

Definition of “matrimonial home”

- primary family residence (not a lease)

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14
Q

Section 4 …

A

Definition of “matrimonial assets”

- all property acquired before and during the marriage

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15
Q

Section 4(1) …

A

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

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16
Q

Section 13 …

A

Results of matrimonial property

- default is 50/50, but courts can award an unequal share if it is more equitable (Leblanc)

17
Q

Section 18 …

A

Exception to business assets
- if one spouse makes substantial contribution, then they can be awarded a % of the business value according to their contribution

18
Q

Unmarried and unregistered couples are not covered by the Matrimonial Property Act (authority)

A

Walsh

- must apply instead for common law remedy of resulting trust or remedial constructive trust

19
Q

Resulting Trust (authority and test)

A

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
20
Q

Remedial Constructive Trust (authority and test)

A

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.

21
Q

How can you get a proprietary reward from a remedial constructive trust?

A
  • (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
22
Q

How can you get a monetary reward from a remedial constructive trust?

A

(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

23
Q

Walsh

A

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.

24
Q

Murdoch

A

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
25
Q

Pettkus

A

Remedial Constructive Trust

  • shown through unjust enrichment
    1. an enrichment of one party
    2. a corresponding deprivation of another party
    3. no ‘juridical reason’

= cash or proprietary remedy

Bonus: first shows up in Laskin’s dissent in Murdoch, adopted by minority in Rathwell, finally applies in Pettkus

26
Q

Sorochan, Pettkus, Peter

A

How you can property reward instead of cash

  1. Show direct and substantial connection between spouse’s contribution and property (Sorochan, Pettkus)
  2. Show that a monetary reward would be insufficient in the circumstances (Peter)
27
Q

Kerr

A 
How you can get a monetary reward
1. Show a 'joint family venture" (MEAP)
M - mutual effort
E - economic integration
A - actual intention
P - priority of the family
2. show a link between contribution and accumulation of wealth

AND
two types of monetary reward (services and investment- based value)

28
Q

2 types of monetary reward under remedial constructive trust

A

Kerr

  • “quantum merit” based on value of services
  • value of investment

Property - Module III (4 decks)

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