Property problems for aboriginal women

Case law has established that personal property on reserves can be divided under the Matrimonial Property Act; however, this does not extend to real property. For many people, most of them women, this poses a significant problem. On marriage, it is customary for an Aboriginal woman to leave her reserve or other place of residence and go to live with her husband on his reserve. The home that they occupy on marriage is generally either owned by the husband's family or acquired by the husband at the time of marriage while the land beneath the home is usually the common property of the Band. On marriage breakdown, there are few remedies for an Aboriginal woman seeking a fair share of the property, including the increase in the value of the property over the course of the marriage. Neither the Indian Act, nor the Matrimonial Property Act, nor any other legislation assists an Aboriginal woman with a property claim on marriage breakdown. This situation is complicated by virtue of the ownership structure on reserves, which differs from the ownership structure of off-reserve land. Further, the reserve band council is inevitably the organization that decides who lives where and for what period of time. Women on reserves are in a particularly vulnerable position when their estranged spouses' family members are also members of the band council.