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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 03:00, 19 April 2013
, 03:00, 19 April 2013→Who got what under the Family Relations Act
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*a spouse wants to start a court proceeding to enforce or set aside an agreement about property that was signed before 18 March 2013. | *a spouse wants to start a court proceeding to enforce or set aside an agreement about property that was signed before 18 March 2013. | ||
For awhile longer it's going to be important | For awhile longer it's going to be important to know how family property is divided under the ''Family Relations Act''. | ||
The division and distribution of property between married spouses was governed by Parts 5 and 6 of the ''Family Relations Act''. Part 5 of the act dealt with the division of property, including personal property, financial assets and real estate. Part 6 dealt with the division of pensions. Unmarried couples, including couples who qualify as unmarried spouses, were expressly excluded from the parts of the act that deal with property. | The division and distribution of property between married spouses was governed by Parts 5 and 6 of the ''Family Relations Act''. Part 5 of the act dealt with the division of property, including personal property, financial assets, and real estate. Part 6 dealt with the division of pensions. Unmarried couples, including couples who qualify as unmarried spouses, were expressly excluded from the parts of the act that deal with property. | ||
===The presumption of equal sharing=== | ===The presumption of equal sharing=== | ||
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<blockquote><tt>(2) ... as a tenant in common.</tt></blockquote> | <blockquote><tt>(2) ... as a tenant in common.</tt></blockquote> | ||
As long as an asset qualified under the act as a ''family asset'', each spouse was presumed to have a one-half interest in that asset. Family assets were defined in s. 58(2) of the act, and the focus under the act was on how an asset was ''used during the relationship'' rather than on who bought it, when it was bought or how it was bought: | As long as an asset qualified under the act as a ''family asset'', each spouse was presumed to have a one-half interest in that asset. Family assets were defined in s. 58(2) of the act, and the focus under the act was on how an asset was ''used during the relationship'' rather than on who bought it, when it was bought, or how it was bought: | ||
<blockquote><tt>Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family | <blockquote><tt>Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset.</tt></blockquote> | ||
This section cast a very broad net: as long as an asset was owned by a spouse and was ordinarily used for a family purpose, the asset would be a "family asset" for the purposes of the ''Family Relations Act'', and it didn't matter whether the asset was brought into the marriage by one spouse | This section cast a very broad net: as long as an asset was owned by a spouse and was ordinarily used for a family purpose, the asset would be a "family asset" for the purposes of the ''Family Relations Act'', and it didn't matter whether the asset was brought into the marriage by one spouse, or bought during the marriage. | ||
To summarize, when a marriage breaks down, the spouses are presumed to own all family assets equally, no matter whose name the asset is in or whether the asset was brought into the marriage by one spouse or bought during the marriage. | To summarize, when a marriage breaks down, the spouses are presumed to own all family assets equally, no matter whose name the asset is in or whether the asset was brought into the marriage by one spouse or bought during the marriage. | ||
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===The equal and unequal division of family assets=== | ===The equal and unequal division of family assets=== | ||
Under s. 56 of the ''Family Relations Act'', each spouse was presumed to have a one-half interest in all family assets. This was, however, only a presumption, a presumption | Under s. 56 of the ''Family Relations Act'', each spouse was presumed to have a one-half interest in all family assets. This was, however, only a presumption, a presumption that could be challenged. When assets were divided more in one spouse's favour than the other, the assets were said to have been ''reapportioned''. | ||
The court could order, or the spouses could agree, that all of the family assets would be reapportioned or that just a few assets would be reapportioned. This might have happened to allow one party to keep more of a pension or more of an inheritance, for example, even though all the other family assets might have been divided equally. | The court could order, or the spouses could agree, that all of the family assets would be reapportioned or that just a few assets would be reapportioned. This might have happened to allow one party to keep more of a pension or more of an inheritance, for example, even though all the other family assets might have been divided equally. | ||
