Married Less Than Five Years — Can the Matrimonial Home Split Really Be Challenged as "Unfair"? Toronto Chinese-Speaking Divorce Lawyer: The Rule Exists, but the Bar Is Extremely High

Many people have heard the claim: married less than five years, you can challenge the matrimonial home split as “unfair” and skip equal division. Is it true? Let me settle it here.

Short answer: the rule does exist — but the bar is extremely high, and most people can’t clear it. Counting on it to save the matrimonial home is most likely a wasted effort.

What s.5(6) actually is

Section 5(6) of Ontario’s Family Law Act gives courts a power: if equal division of net family property would be “unconscionable,” the court can order an unequal division. The statute lists eight factors, and s.5(6)(e) is the one everyone’s heard of: cohabitation of less than five years, where the amount one spouse would receive is disproportionately large.

Note: it’s one of eight. What actually decides is the overall test — unconscionability. In Serra v. Serra, 2009 ONCA 105, the Court of Appeal put it bluntly: equal division must “shock the conscience” of the court.

The word “unfair” doesn’t cut it with judges. In Smith v. Smith, 2012 ONSC 1116, the judge said it even more directly: showing equalization would cause hardship, or that it’s unfair, harsh, or unjust — not enough. To clear the bar, the result must be “repugnant to anyone’s sense of justice” — plainly put, anyone looking at it would say it offends justice itself.

What winning cases look like

Nobody has won on this? Not true. In Booth v. Bilek, 2021 ONCA 128 and Jayawickrema v. Jayawickrema, 2020 ONSC 4444, courts did order unequal division. The common thread: very short marriages, a home one spouse bought outright before marriage, the other contributing almost nothing — where equal division just couldn’t be defended.

But note: “very short.” A few months, a year or so. Married three or four years with a real life built together — this provision won’t “shock the conscience.”

The key logic: you can’t call the statute’s own result “unfair”

Many can’t accept it: I bought this house outright before marriage — why does it get fully divided once it becomes the matrimonial home? That’s unfair.

Section 5(2) says it in black and white: a premarital home, once it becomes the matrimonial home, goes into division at full value — no deduction for what you brought in. That’s the statute’s express rule. You can’t take “the result the statute mandates” and argue “that’s unfair” — that’s telling the judge the legislature’s own law is unfair. Judges don’t entertain that.

An analogy: the law says speeding gets you fined — you can’t tell the judge “fines are unfair so don’t fine me.” Rules are rules. If you didn’t like it, you should have written it into an agreement.

When courts actually depart from equal division

Judges do act — in cases with serious misconduct: s.5(6)(a), (b), (d) — a spouse hiding premarital debts, recklessly depleting or transferring family property (gambling away the assets, for example), deliberately hollowing out the family finances. Merklinger v. Merklinger is the example: the husband maneuvered to grab a million-dollar-plus cottage for less than two-thirds of its value, and the court ordered unequal division.

There’s one more scenario where judges weigh the human element: children. Without children, it’s purely a numbers case — judges follow the formula and have little patience for grievances.

The road that actually works is a different one

Rather than betting on the one-in-ten-thousand exception of s.5(6), take the proper road: if the house was really your parents’ money, argue resulting trust — prove your parents were holding it in trust, not gifting it. Not married yet? Sign a prenup. Already married? Sign a marriage contract. Get it in black and white — that beats everything. Don’t wait for a judge to be “shocked”; write the agreement yourself.

The “under five years” rule is real — but it’s built for extreme cases, not ordinary ones. Don’t pin your hopes on the exception; sign the agreements you should have signed. Book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This article is general legal information, not legal advice, and does not create a lawyer-client relationship.