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Difference between revisions of "Assets of Couples (3:IX)"
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The following is excluded from family property: | The following is excluded from family property: | ||
* (a) | * (a) Property acquired by a spouse before the relationship between the spouses began; | ||
* (b) | * (b) Inheritances to a spouse; | ||
** (b.1) | ** (b.1) Gifts to a spouse from a third party; | ||
*(c) Aa settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for | *(c) Aa settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for | ||
** (i) | ** (i) Loss to both spouses, or | ||
** (ii) | ** (ii) Lost income of a spouse; | ||
*(d) | *(d) Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for | ||
** (i) | ** (i) Loss to both spouses, or | ||
** (ii) | ** (ii) Lost income of a spouse; | ||
* (e) | * (e) Property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse; | ||
* (f) Aa spouse's beneficial interest in property held in a discretionary trust | * (f) Aa spouse's beneficial interest in property held in a discretionary trust | ||
** (i) | ** (i) To which the spouse did not contribute, and | ||
** (ii) | ** (ii) That is settled by a person other than the spouse; | ||
* (g) | * (g) Property derived from property or the disposition of property referred to in any of paragraphs (a) to (f). | ||
Any increases in the value of the excluded property that occur during the relationship are considered family property and are not excluded from division. The spouse claiming that the property in question qualifies as excluded property is responsible for demonstrating that it fits the definition under s 85(1) (Bressette v Henderson, 2013 BCSC 1661). | |||
This property division regime applies to all married spouses as well as all unmarried common-law spouses who have lived in a marriage-like relationship for at least two years. The date of separation will be the relevant date used to identify the pool of family property to be divided. However, it is the date of the hearing or agreement which determines the date of valuation of property. Spouses may choose to opt out of these property division rules but must make these different arrangements through an agreement. | |||
Family property, is defined at s 84(1): | |||
* (a) On the date the spouses separate, | |||
** (i) Property that is owned by at least one spouse, or | |||
** (ii) A beneficial interest of at least one spouse in property; | |||
* (b) After separation, | |||
** (i) Property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or | |||
** (ii) A beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either. | |||
#Supreme Court Family Rules [SCFR] | |||
The Supreme Court Family Rules contain a number of procedural provisions for dealing with property. | |||
For example, Rule 12-1 allows for the detention, preservation, and recovery of property that is the subject matter of a family law case. Rule 12-4 allows for a pre-trial injunction. Rule 15-8 permits the Court to order a sale of property if it appears necessary and expedient that the property be sold. Where a dispute arises, an application can be made to the Supreme Court to settle the matter, but clients should be advised that a court action is costly and a negotiated settlement is generally to their advantage because courts have a wide discretion to distribute family property. For example, a court could order the sale of property at a time when the housing market is poor, resulting in a low sale price. Sometimes, a spouse should consider selling their interest in a property to the other spouse. | |||
== C. Types of Assets == | == C. Types of Assets == | ||
