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Difference between revisions of "Dividing Property and Debt in Family Law Matters"
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Dividing Property and Debt in Family Law Matters (view source)
Revision as of 19:57, 27 June 2019
, 19:57, 27 June 2019→Property and debt inside British Columbia
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Section 97 is the key to Part 5 of the ''[[Family Law Act]]'' and gives the court its general power to make orders about the division of property and debt. Under this section, the court may: | Section 97 is the key to Part 5 of the ''[[Family Law Act]]'' and gives the court its general power to make orders about the division of property and debt. Under this section, the court may: | ||
*make decisions about any issue concerning the ownership, possession, or division of property or debt, | |||
*make any order necessary to divide property or debt, | |||
*declare who should own or possess property, | |||
*make a spouse pay compensation if they have sold or transferred property that should have been shared, | |||
*require the sale of a property and payment to the spouses from the proceeds of the sale, | |||
*make one spouse be responsible for debt, | |||
*require the sale of property to pay debt, and | |||
*make orders transferring property to a spouse. | |||
Under s. 97, the court can make whatever orders are needed to equally divide family property and family debt between spouses, whatever extra orders are needed to divide family property and family debt unequally under s. 95, and whatever extra orders are needed to divide excluded property under s. 96. | Under s. 97, the court can make whatever orders are needed to equally divide family property and family debt between spouses, whatever extra orders are needed to divide family property and family debt unequally under s. 95, and whatever extra orders are needed to divide excluded property under s. 96. | ||
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Under s. 89, the court can make an order for the interim distribution of some of the family property to a party to pay for: | Under s. 89, the court can make an order for the interim distribution of some of the family property to a party to pay for: | ||
*the cost (i.e. legal fees) of the court proceeding, | |||
*the cost of another dispute resolution process, like mediation, arbitration, and collaborative settlement processes, and | |||
*the cost of expert's reports, like needs of the child assessments under s. 211, property appraisals, or business valuation. | |||
In practice, the court will usually make an order for an interim distribution for legal fees if the court feels it is necessary to "level the playing field" between spouses. By making such an order, the court tries to ensure that the spouse who has all the money and can afford a lawyer does not have an advantage over the spouse who does not have as much money and may not be able to afford to pay for a lawyer without an interim distribution for legal fees. | In practice, the court will usually make an order for an interim distribution for legal fees if the court feels it is necessary to "level the playing field" between spouses. By making such an order, the court tries to ensure that the spouse who has all the money and can afford a lawyer does not have an advantage over the spouse who does not have as much money and may not be able to afford to pay for a lawyer without an interim distribution for legal fees. | ||
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=====Use of property===== | =====Use of property===== | ||
Under s. 90, the court can make an interim order that one spouse have the exclusive right to live in the family home and use the property (i.e. household contents and furnishings) kept at the family home. The court will make these orders if it's no longer possible for the spouses to share the home and if the convenience to the spouse who's staying in the home outweighs the inconvenience to the spouse who's being made to leave. Usually, if there are children (especially young children), the spouse who has primary care of the children will be the spouse who remains in the family home because the children require stability and security of remaining in the family home. | Under s. 90, the court can make an interim order that one spouse have the exclusive right to live in the family home and use the property (i.e. household contents and furnishings) kept at the family home. The court will make these orders if it's no longer possible for the spouses to share the home and if the convenience to the spouse who's staying in the home outweighs the inconvenience to the spouse who's being made to leave. Usually, if there are children (especially young children), the spouse who has primary care of the children will be the spouse who remains in the family home because the children require the stability and security of remaining in the family home. | ||
Under s. 91(2)(a), the court can make other interim orders "for the possession, delivery, safekeeping and preservation of property." This might include orders that a spouse must return personal property to the other spouse or that a spouse will have the sole use of personal property, like a car that's necessary to go to work or take the kids to school. | Under s. 91(2)(a), the court can make other interim orders "for the possession, delivery, safekeeping and preservation of property." This might include orders that a spouse must return personal property to the other spouse or that a spouse will have the sole use of personal property, like a car that's necessary to go to work or take the kids to school. | ||
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====Dividing property and debt unequally==== | ====Dividing property and debt unequally==== | ||
Under s. 95(1) of the ''[[Family Law Act]]'', the court may divide family property or family debt unequally, but only if equal division would be "significantly unfair"in the context of the factors mentioned in s. 95(2). Recent court decisions explain that the unfairness must be "weighty, meaningful or compelling." A judge can only order an unequal division of family property where the result of equal division would be so unfair as to be unjust or unreasonable. It is highly unlikely that a court would find the circumstances to be "significantly unfair" merely because one spouse worked during the marriage and the other spouse did not. <!-- Note that significant unfairness in this context requires much more than differing financial contributions in a relationship. --> | Under s. 95(1) of the ''[[Family Law Act]]'', the court may divide family property or family debt unequally, but only if equal division would be "significantly unfair" in the context of the factors mentioned in s. 95(2). Recent court decisions explain that the unfairness must be "weighty, meaningful or compelling." A judge can only order an unequal division of family property where the result of equal division would be so unfair as to be unjust or unreasonable. It is highly unlikely that a court would find the circumstances to be "significantly unfair" merely because one spouse worked during the marriage and the other spouse did not. <!-- Note that significant unfairness in this context requires much more than differing financial contributions in a relationship. --> | ||
Section 95(2) provides a list of factors considered when deciding if equal division of property and debt is significantly unfair: | Section 95(2) provides a list of factors considered when deciding if equal division of property and debt is significantly unfair: | ||
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<blockquote><blockquote><tt>(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.</tt></blockquote></blockquote> | ||
In some cases judges find that the ''unequal contribution'' of one person, along with other factors, warrants unequal division. In other cases, ''unequal contribution'' is not enough to establish "significant unfairness." | In some cases, judges find that the ''unequal contribution'' of one person, along with other factors, warrants unequal division. In other cases, ''unequal contribution'' is not enough to establish "significant unfairness." | ||
Under s. 95(3), the court can also take into <span class="noglossary">account</span> issues relating to spousal support in deciding whether to divide family property and family debt unequally: | Under s. 95(3), the court can also take into <span class="noglossary">account</span> issues relating to spousal support in deciding whether to divide family property and family debt unequally: | ||
