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Difference between revisions of "Basic Principles of Property and Debt in Family Law"
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Basic Principles of Property and Debt in Family Law (view source)
Revision as of 04:45, 26 March 2013
, 04:45, 26 March 2013→Introduction
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====Date of Cohabation or and the Date of Marriage==== | ====Date of Cohabation or and the Date of Marriage==== | ||
Section 3 says when a relationship between spouses begins: | Section 3(3) says when a relationship between spouses begins: | ||
<blockquote><tt>(3) A relationship between spouses begins on the earlier of the following:</tt></blockquote> | <blockquote><tt>(3) A relationship between spouses begins on the earlier of the following:</tt></blockquote> | ||
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For married spouses, their relationship starts on the earlier of the date they began to live together in a marriage-like relationship or got married. For unmarried spouses, once the parties have lived together for two years, their relationship as spouses is considered to have started on the date they began to live together. | For married spouses, their relationship starts on the earlier of the date they began to live together in a marriage-like relationship or got married. For unmarried spouses, once the parties have lived together for two years, their relationship as spouses is considered to have started on the date they began to live together. | ||
The date of a couple's marriage is pretty obvious. It isn't always so obvious when a couple "begins" to live together in a marriage-like relationship. | The date of a couple's marriage is pretty obvious. It isn't always so obvious when a couple "begins" to live together in a marriage-like relationship. The judge in a 2003 case from the Saskatchewan Court of Queen's Bench, ''Yakiwchuk v. Oaks'', expressed the problem this way: | ||
<blockquote>"With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people 'ease into' situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist."</blockquote> | |||
Hands up, anyone who began to "cohabit with little forethought or planning"! | |||
====Date of Separation==== | ====Date of Separation==== | ||
Separation usually happens when one spouse decides that the relationship cannot continue, says so and then takes steps to end the partnership-like qualities of the relationship, usually by stopping sleeping together, stopping doing chores for the other person, stopping going out together as a couple and so on. Section 3 (4) offers some guidance on when a spousal relationship ends. | |||
<blockquote><tt>(4) For the purposes of this Act,</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) Spouses may be separated despite continuing to live in the same residence, and</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) the court may consider, as evidence of separation,</tt></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote> | |||
It's easy to imagine that the date of separation could be argued about, especially if the spouses reconciled for a period of time or if a spouse's commitment to ending the partnership-like aspect of a relationship wavered from time to time. In order to avoid spending money on lawyers arguing about this issue, you might consider documenting the date of separation in some way, perhaps by sending a letter or an email to your spouse stating your intention to separate. Do remember to keep a copy. | |||
====Time Limits==== | ====Time Limits==== | ||
===Partnership of | Section 198(2) of the ''Family Law Act'' sets out some important time limits on when claims for the division of property and debt can be brought: | ||
#married spouses must bring their claim within two years of the date of their ''divorce'' or a declaration ''annulling'' their marriage; and, | |||
#unmarried spouses must bring their claim within two years of the date of ''separation''. | |||
Under s. 198(5), however, the running of this time limit is considered to be suspended while the parties are engaged in ''family dispute resolution'' with a ''family dispute resolution professional''. Both of these terms are defined in s. 1, and the running of the time limit will not stop if their dispute resolution process doesn't fall within the definition of "family dispute resolution" or if the spouses are not using the services of someone who falls within the definition of "family dispute resolution professional". | |||
===A Partnership of Acquests=== | |||
The scheme for the division of property under the ''Family Law Act'' is technically a ''deferred partnership of acquests'' regime. Under the old ''Family Relations Act'', property was divided under a ''deferred community of property'' regime. A "partnership of acquests" scheme for family property means that the spouses both own all of the property acquired during their relationship, whether the property is owned by one spouse or by both spouses jointly; our model is ''deferred'' because the right to an equal share in this property doesn't arise until the spouses have separated. | |||
====Family Relations Act and the Family Law Act==== | ====Family Relations Act and the Family Law Act==== | ||
Under the ''Family Relations Act'', married spouses shared in all property that was "ordinarily used for a family purpose". This meant that you didn't need to look at who owned something on paper, how something was acquired, or whether property was acquired before or during the relationship; what mattered was how the property was ''used''. For most couples ''everything'' they had wound up being ordinarily used for a family purpose in one way or another. | |||
Under the ''Family Law Act'', use is irrelevant. In fact that's exactly what s. 81(a) says: | |||
<blockquote><tt>spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution</tt></blockquote> | |||
What matters know is ''when'' property was acquired — was it before or during the spouses' relationship — and ''how'' property was acquired — was it bought with a spouse's excluded property or with shared family property? | |||
====Transition Provisions==== | ====Transition Provisions==== | ||
