Normally, the division of property is 50/50 increased value during the marriage based on the equal partnership rationale. However, there are certain situations contemplated in s. 5(6) which allow the court to order an amount that is either more or less than one-half the difference between the net family properties.
Once the calculation is complete the court will consider any other circumstances relating to the conduct or situation of the parties in order to make a determination as to whether or not a s.5(6) variation would be appropriate. The factors the courts will use when considering a deviation from a 50/50 division are:
- spouse’s failure to disclose to the other spouse debts or liabilities existing at the date of the marriage;
- debts and liabilities claimed in reduction of a spouse’s net family property that were incurred recklessly or in bad faith
- the portion of a spouse’s net family property that is made up of gifts given by the other spouse
- a spouse’s intentional or reckless depletion of his or her net family property
- the length of the marriage – It may be that an equalization payment would be disproportionately large in relation to a marriage that lasted less than 5 years.
- if a spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family
- a written agreement between the spouses that is not a domestic contract, or
- Any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.