Dalhousie Journal of Legal Studies


Joan E. Hatch


The question of how to deal with professional degrees upon marital breakdown is an interesting one, yet there is a relative paucity of Canadian cases on the subject. In the United States, where the issue has been considered much more frequently, there are conflicting opinions as to the proper approach. Often, degrees acquired during marriage are not explicitly dealt with on their own; they are used as factors to be considered in awarding maintenance payments or an unequal division of other marital assets. Rarely has it been argued that the value of the degrees themselves be divided as part of the matrimonial property; rarer still has such an argument met with much success. Courts have focused on the question of whether degrees can be considered property and rejected the claim on that basis. Underlying these decisions is a concern for where a division of a degree as property might lead. This paper addresses these policy concerns and examines arguments in favour of dividing degrees acquired during the marriage as matrimonial property. Given the limitations of using existing matrimonial property legislation to do this, it is suggested that this is most effectively accomplished through a remedial constructive trust. These principles will then be applied to an analysis of the Ontario Court of Appeal's recent decision in Caratun v. Caratun.

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Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.

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