Matrimonial real property on reserve

On this page

• About Family Homes on Reserves and Matrimonial Interests or Rights Act
• Who is affected?
• Enacting First Nations laws
• Provisional federal rules
• Common questions
• First Nations Seeking Matrimonial Real Property Support
• Training and education resources
• Contact us

About the Family Homes on Reserves and Matrimonial Interests or Rights Act

Real property is property that cannot be physically moved, like land or a family home. Matrimonial real property refers to real property that is shared by 2 people during a marriage or common-law relationship. When a marriage or common-law relationship ends, such as in divorce or the death of a spouse or common-law partner, there are often many aspects which require sorting out including the division of real property.

Off-reserve, the division of matrimonial real property is generally governed by the laws of the province or the territory. However, the Supreme Court of Canada decision Derrickson v. Derrickson ruled that because reserve lands fall under federal jurisdiction, certain provincial and territorial laws could not be applied to matrimonial real property on-reserve.

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was created to fill the gap. FHRMIRA was developed after a long consultation process between the Government of Canada, the provinces and territories, and National Indigenous Organizations. Over 100 consultation sessions were held across Canada. FHRMIRA provides a mechanism for First Nations to create their own laws about matrimonial real property, and provides a set of provisional federal rules to be used until a First Nation establishes its own law.

As of February 2022, 17 First Nations have enacted their own laws under FHRMIRA. Another 40 First Nations have enacted their own matrimonial real property laws under their Land Code established under the Framework Agreement on First Nations Land Management. Most other First Nations operate under the provisional federal rules. A First Nation that has not yet enacted its own matrimonial real property law may choose to do so at any time.

To find out more, consult the desk book.

Who is affected?

The Family Homes on Reserves and Matrimonial Interests or Rights Act applies to married couples or common-law partners living on-reserve, where at least 1 partner is a First Nation member or Status Indian. The Indian Act defines a common-law relationship as 2 people in a conjugal relationship who have been living together for a year or more.

First Nations with self-government agreements covering land management are not included within the scope of FHRMIRA, as the self-government agreement already determines which matrimonial real property matters are governed by the province, territory or First Nation. However, self-governing First Nations with reserve lands may ask the Minister to make a declaration that the provisional federal rules apply to them.

The provisional federal rules also apply to any self-governing First Nation:

• considered a band under the Indian Act
• with a sectoral self-government agreement not including the power to manage reserves

FHRMIRA establishes that the provisional federal rules do not apply to situations in which the relationship breakdown or death occurred before the provisional federal rules began to apply in the relevant First Nation community.

First Nations that were on the schedule to the First Nations Land Management Act prior to June 19, 2013, and had not brought their land code into force by December 16, 2014 had until June 19, 2016 to bring into force their own matrimonial rights laws, otherwise the provisional federal rules began to apply to them at that time.

Consult a complete list of First Nations with their own matrimonial rights or interest laws under FHRMIRA.

Enacting First Nations laws

FHRMIRA describes how First Nations can put in place their own matrimonial real property law. The law enacted by First Nations is subject to a community approval process. Neither ministers nor any government department review, alter or approve a First Nation's matrimonial real property law. To enact a matrimonial real property law, a First Nation must:

1. notify the attorney general in its province of its intent to enact its own law
2. inform eligible voters both on and off-reserve of the details of the proposed law, and their right to vote on the proposed law
3. publish a notice of the date, time and place of the community ratification vote
4. submit the laws for community approval. The law is considered ratified with a single majority vote with a voter turnout of at least 25% of eligible voters
5. once the law is approved by the community, the council must notify the minister in writing of the result of the vote
6. send a copy of the approved laws to the minister, and the attorney general of any province where a reserve of the First Nation is situated

If a First Nation member believes the new law does not meet the requirements of FHRMIRA, violates the Canadian Charter of Rights and Freedoms, or otherwise is legally invalid, they can advocate for an amendment to the law, and if necessary challenge it in the courts.

Provisional federal rules

When a First Nation has not enacted its own matrimonial real property law, the provisional federal rules are in place. They ensure that:

• spouses and common-law partners have equal right to occupy the family home during the relationship
• the family home cannot be sold, transferred or mortgaged during the marriage or common-law relationship without the free and informed written consent of the other spouse or common-law partner, regardless of whether that spouse or common-law partner is a First Nation member
• a spouse or common-law partner can be awarded exclusive occupation of the family home on an urgent basis in cases of family violence
• courts may provide short-term to long-term occupancy of the family home to the exclusion of 1 of the spouses or common-law partners. The length of this order is chosen by the court, and may range from a set number of days to a longer period (for example, occupancy may last until dependent children reach the age of majority)
• the value of a couple's matrimonial interests or rights in, or to, the family home, other structures, and in some cases lands, when both parties are band members, on the reserve may be divided equitably between each First Nations member spouse or common-law partner
• in some cases, a court may transfer an interest or right in reserve land between First Nations member spouses or common-law partners together with, or instead of, financial compensation
• when a spouse or common-law partner dies, the surviving spouse or common-law partner may remain in the home for a specified period of time, and can choose to apply under the federal rules for a division of the value of the matrimonial real property interests or rights instead of inheriting from the estate of the deceased
• parties may come to an agreement about matrimonial real property matters (for example, through mediation or traditional dispute resolution) which can be enforced by the court if necessary as long as the agreement is fair and reasonable

The provisional federal rules also provide protection to surviving spouses or common-law partners in the event of a death:

• the survivor has an automatic right to occupy the family home for 180 days after the death of their spouse or common-law partner, regardless of whether or not they have an interest in or right to the home
• the survivor can apply for exclusive occupation of the matrimonial home beyond the 180-day period. The court will take various factors into consideration when determining whether or not to grant exclusive occupation and for how long
• the survivor can apply for a division of the value of the deceased's interest in or right to the family home and other matrimonial interests or rights. If the court determines that the survivor is entitled under FHRMIRA to an amount in respect of that interest or right, the survivor will not also be able to receive an amount or right under the will or the Indian Act related to the same property
• the survivor can still inherit other assets under the will. Administrators and executors of estates have access to information regarding the options for survivors that may affect the estate administration

Generally speaking, remedies under the provisional federal rules are accessible through provincial and territorial superior courts when couples cannot solve a dispute out of court. This is the same as the process for individuals living off-reserve.

Under the provisional federal rules, the value of interests or rights is based on what a buyer would reasonably be expected to pay a seller for comparable interests or rights. This estimate also takes into account any related liabilities and outstanding debts.

The provisional federal rules are based on the types of rights and protections contained in provincial and territorial family laws. However, for a variety of reasons including the unique nature of land and housing on-reserves, the provisional federal rules differ from the provincial and territorial laws in some respects.

Common questions

First Nations Seeking Matrimonial Real Property Support

The National Aboriginal Lands Managers Association has support available for First Nations communities interested in enacting a community-specific law under FHRMIRA or implementing the provisional federal rules as well as for individuals seeking information about FHRMIRA. To find out more, visit the National Aboriginal Lands Managers Association.

The National Aboriginal Lands Managers Association and Indigenous Services Canada (ISC) do not provide legal advice, but may be able to direct you to further resources. You may also be eligible for legal aid in your province or territory.

Training and education resources

Training and education is provided for key officials applying or enforcing FHRMIRA, including police officers on-reserve.

Contact us

Indigenous Services Canada
Community Lands Development Directorate
Les Terrasses de la Chaudière
11th floor
10 Wellington Street
Gatineau, QC K1A 0H4
Tel.: (toll-free) 1-800-567-9604
E-mail: mrp-bim@aadnc-aandc.gc.ca