In New Brunswick, marital property is divided equally (50/50) between spouses under the Marital Property Act, RSNB 2012, c. 107, while separate property — gifts, inheritances, and pre-marriage assets kept distinct — generally stays with its owner. A property-division application must be filed within 60 days of the divorce being granted.
Understanding the difference between marital vs. separate property New Brunswick law recognizes is the single most important financial issue in any divorce. New Brunswick uses an equal division model, not a discretionary "equitable" one, meaning the presumptive starting point is a 50/50 split of marital property and marital debts. This guide explains exactly what is marital property, how separate property loses protection through commingling, and the strict deadlines that can permanently bar your claim.
Key Facts: Property Division in New Brunswick
| Fact | Detail |
|---|---|
| Filing Fee | $110 total ($100 petition + $10 Clearance Certificate). As of June 2026. Verify with your local clerk. |
| Waiting Period | 1-year separation required before a no-fault divorce is granted |
| Residency Requirement | At least one spouse ordinarily resident in New Brunswick for 1 year |
| Grounds | Marriage breakdown (1-year separation), adultery, or cruelty under the Divorce Act |
| Property Division Type | Equal division (50/50) of marital property under the Marital Property Act |
What Is Marital Property in New Brunswick?
Marital property in New Brunswick consists of "family assets" — property owned by one or both spouses and ordinarily used by the family for shelter, transportation, household, educational, recreational, or social purposes. Under New Brunswick Marital Property Act § 2, each spouse is entitled to an equal share, making the 50/50 division a presumptive right, not a discretionary award.
The category of marital property is broad and captures most assets accumulated during the marriage. It includes the matrimonial home, personal investments, automobiles, household goods and furnishings, bank accounts, and pensions earned during the relationship. The defining test is not whose name appears on the title but whether the asset was ordinarily used or enjoyed by the family. A vehicle registered solely to one spouse but driven by the whole family is a family asset subject to equal division.
Marital debts follow the same equal-sharing rule. Under New Brunswick Marital Property Act § 2, spouses bear an equal share of debts accumulated during their life together, including mortgages, credit-card balances, and lines of credit. A spouse who entered the marriage debt-free can still be responsible for half of joint debts incurred during the relationship, which is why a full accounting of liabilities matters as much as an accounting of assets.
What Is Separate Property in New Brunswick?
Separate property in New Brunswick includes gifts, inheritances, and assets owned before the marriage that were kept distinct from family use. Under the Marital Property Act, property that was a gift, devise, or bequest from a third person to one spouse only — including income from that property — is expressly carved out of the marital pool and generally remains with the original owner.
The separate-property exemption rests on a simple principle: assets a spouse brought into the marriage or received individually from outside the relationship should not automatically be shared. The Act protects three main categories of separate property. First, property owned before the marriage and kept separate. Second, gifts received by one spouse alone from a third party. Third, inheritances and bequests, along with the traceable proceeds of those assets if the owner can document the chain.
Tracing is the practical key to protecting separate property in a divorce. New Brunswick law extends the exemption to property representing the proceeds of disposition of non-family assets — so a $50,000 inheritance used to buy stock that grows to $80,000 can remain separate if the owner traces the funds. Without clear records, however, the burden of proof shifts against the owner, and the asset risks reclassification as commingled assets subject to equal division.
How Commingled Assets Lose Separate Status
Commingled assets lose their separate status in New Brunswick when separate property is mixed with marital funds or used for family purposes, transforming it into a divisible "family asset." Once an inheritance or gift is deposited into a joint account or used to benefit the household, it can become subject to the 50/50 division, and the owner must then seek a discretionary exclusion rather than rely on the automatic exemption.
Commingling — sometimes called transmutation property analysis — is the most common way spouses accidentally forfeit separate-property protection. Consider an inheritance of $100,000 deposited into a joint chequing account used to pay household bills. By mixing inherited funds with marital money, the spouse converts a protected inheritance into commingled assets. The same outcome occurs when one spouse uses a pre-marriage savings account to renovate the matrimonial home or fund family vacations.
The critical distinction in New Brunswick is between separate property kept genuinely separate versus separate property that becomes a "family asset" through use. "Family assets" means property, whether acquired before or after marriage, ordinarily used or enjoyed for household, shelter, transportation, recreational, social, or educational purposes. Once an inheritance is woven into family life, it presumptively falls into the 50/50 pool, and the owner carries the burden of persuading the court to exclude it.
The Section 6 Discretionary Exclusion
Under New Brunswick Marital Property Act § 6, a court may exclude a family asset that was acquired before marriage, or received as a gift or inheritance, if including it in the equal division would be "unfair and unreasonable" to the owner. This discretionary exclusion is the safety valve for separate property that became commingled or was used for family purposes.
Section 6 does not guarantee that a former separate asset will be returned to the owner — it gives the court discretion to weigh fairness. The court considers whether the non-owning spouse made any substantial contribution to the acquisition, management, maintenance, operation, or improvement of the asset. Where the non-owning spouse contributed nothing and the asset originated entirely as one spouse's inheritance, the case for exclusion strengthens considerably.
The duration of the marriage is a decisive factor under Section 6. New Brunswick courts are more likely to exclude an inherited or pre-marriage asset where cohabitation was of short duration, reasoning that a brief marriage gives the non-owning spouse little equitable claim to the other's separate wealth. By contrast, in a long marriage where an inheritance funded the family home for decades, a court may decline to exclude the asset and instead divide it equally, treating the long-term family use as decisive.
When New Brunswick Courts Order Unequal Division
Under New Brunswick Marital Property Act § 7, a New Brunswick court may depart from the default 50/50 split and order an unequal division of marital property where an equal division would be inequitable. This provision recognizes that mechanical equality occasionally produces unjust results that the court must correct.
Several specific factors justify unequal division under the Act. A court may award one spouse more than half where the other spouse deliberately depleted or dissipated marital property — for example, by gambling away savings or transferring assets to avoid division. The existence of a valid domestic contract, the length of the marriage, and the date particular property was acquired also weigh in the analysis. A short marriage with little intermingling of finances often supports a departure from strict equality.
New Brunswick law also allows courts to divide property that is not normally marital property in three defined situations. The court may reach non-marital property — including otherwise-exempt business assets — where one spouse unreasonably impoverished the marital property, where dividing only marital property would be inequitable, or where one spouse assumed the majority of child care or household management. This mechanism is the primary route by which a non-owning spouse can claim a share of a family business in New Brunswick.
How the Matrimonial Home Is Treated
The matrimonial home receives special protection in New Brunswick regardless of which spouse holds legal title. Under New Brunswick Marital Property Act § 18, both spouses have an equal right to possess the marital home, and neither can sell or mortgage it without the other spouse's written consent, even if only one name appears on the deed.
The matrimonial home is the centrepiece of most property disputes because it is usually the largest single asset. New Brunswick treats it as a family asset by default, meaning its equity is presumptively split 50/50 even when one spouse owned the home before the marriage. This is a crucial point that surprises many people: bringing a house into a marriage does not automatically keep it as separate property if it becomes the family residence.
The Act does build in some flexibility for homes acquired by gift or inheritance. A court may consider the extent to which an interest in the marital home was acquired by one spouse through inheritance or gift, and other circumstances surrounding its acquisition and use, in deciding whether an equal split of net proceeds would be inequitable. In practice, however, the strong protection of equal possession rights and the home's role as the family residence make a 50/50 division of the matrimonial home the most likely outcome in New Brunswick.
The Critical 60-Day Deadline and Financial Disclosure
A divorce judgment in New Brunswick does not automatically divide property — a separate application under the Marital Property Act must be filed within 60 days of the divorce being granted, or the right to claim equal division can be permanently lost. This is the most consequential procedural deadline in New Brunswick family law.
Many people mistakenly assume that obtaining a divorce resolves property issues, but the two processes are legally distinct. The federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) governs the dissolution of the marriage, while the provincial Marital Property Act governs who gets what. If a spouse fails to file the property-division application within the 60-day window after the divorce judgment, the courts can refuse to hear the claim, leaving assets divided as titled rather than equally.
Financial disclosure is mandatory once a property application is filed. Under New Brunswick Marital Property Act § 12, each party must file and serve a sworn Financial Statement (Form 72J) disclosing full particulars of all property and debts. Incomplete or dishonest disclosure can result in the court setting aside a settlement later, so accurate, documented disclosure protects both spouses and is essential to enforcing a fair division.
Domestic Contracts: Overriding the Default Rules
Married and engaged couples in New Brunswick can override the default equal-division rules through a domestic contract — a marriage contract, cohabitation agreement, or separation agreement. Under New Brunswick Marital Property Act § 43, a valid domestic contract generally prevails over the Act's default rules, though courts retain power to disregard provisions that are inequitable.
A properly drafted domestic contract is the most reliable way to protect separate property and avoid the uncertainty of litigation. Couples can agree that an inheritance, a family business, or a pre-marriage home will remain separate property regardless of how it is later used. They can also fix how the matrimonial home and pensions will be divided, replacing the statutory 50/50 default with terms they negotiate themselves.
The court's residual power to override unfair terms means a domestic contract is not absolutely bulletproof. New Brunswick courts can disregard a provision that would be inequitable in the circumstances — for instance, a one-sided agreement signed without independent legal advice or full financial disclosure. To maximize enforceability, each spouse should obtain separate legal advice, exchange complete financial disclosure, and sign without pressure, creating a record that the agreement was fair and freely made.