Section 16 of the Matrimonial Property Act, RSA 1980, c M-9, stated that the rights of a person who started a property action against a spouse did not survive that person’s death, and thus the action could not be continued by his or her estate. This was based on the legal policy that matrimonial property should be available for the use of a surviving spouse. This report notes that, in practice, this section led to delaying tactics by defendants in marital property actions when the plaintiff was ill, in the hope that the plaintiff would die before the action was completed. The report concludes that there are two potential solutions to this problem of delay: – s 16 could be removed entirely, thus allowing the estates of deceased spouses to both commence and continue matrimonial property actions after a spouse’s death; or – s 16 could be amended to allow the estate of a deceased spouse to continue an action already commenced, but not to commence a new action. The report suggests that the second solution wold be better, because it would change the (then-) current law the least. Although this is a deviation from the original policy, the report justifies it on three bases: it solves the problem of delay; it retains the rights to commence property actions solely with the spouses; and the courts would still have discretion to divide property as they saw fit, subject to the presumption of equal division. In order to eliminate any incentive for delay, the report also suggests that death of a spouse should not be a factor for consideration in section 8 of the Act, which affects a court’s decision to divide property unequally between spouses.
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