Property and Debt in Family Law Matters: Difference between revisions
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Under the provincial ''[[Family Law Act]]'', each spouse is presumed to keep what he or she brought into their relationship and to share in the things they acquire during their relationship. The same rules apply about debt; spouses are presumed to share responsibility for the debts that accumulated during their relationship. The federal ''[[Divorce Act]]'' doesn't talk about the division of property or debt. | Under the provincial ''[[Family Law Act]]'', each spouse is presumed to keep what he or she brought into their relationship and to share in the things they acquire during their relationship. The same rules apply about debt; spouses are presumed to share responsibility for the debts that accumulated during their relationship. The federal ''[[Divorce Act]]'' doesn't talk about the division of property or debt. | ||
This page provides an introduction to the division of property and debt between spouses and how the property rules of the ''Family Law Act'' are different from the ''[[Family Relations Act]]'', the rules about property that apply to couples who are not spouses, and some of the income tax issues that can come up when dividing property. The pages that follow will go into the rules about the division of property and debt in a lot more detail. | This page provides an introduction to the division of property and debt between spouses and how the property rules of the ''[[Family Law Act]]'' are different from the ''[[Family Relations Act]]'', the rules about property that apply to couples who are not spouses, and some of the income tax issues that can come up when dividing property. The pages that follow will go into the rules about the division of property and debt in a lot more detail. | ||
==Dividing property and debt under the ''Family Law Act''== | ==Dividing property and debt under the ''Family Law Act''== | ||
The parts of the ''Family Law Act'' about the division of property and debt apply to people who are ''spouses''. The definition of spouse for these parts of the act are a bit different from the rest of the act. For the division of property and debt, a spouse is: | The parts of the ''[[Family Law Act]]'' about the division of property and debt apply to people who are ''spouses''. The definition of spouse for these parts of the act are a bit different from the rest of the act. For the division of property and debt, a spouse is: | ||
#someone who is married or was married to someone else, or | #someone who is married or was married to someone else, or | ||
#someone who is or was living in a "marriage-like relationship" with someone else for at least two years. | #someone who is or was living in a "marriage-like relationship" with someone else for at least two years. | ||
People who lived together for less than two years are ''not'' spouses for these parts of the ''Family Law Act'', whether they've had a child together or not. | People who lived together for less than two years are ''not'' spouses for these parts of the ''[[Family Law Act]]'', whether they've had a child together or not. | ||
Property and debt can be divided under the terms of a cohabitation agreement or a marriage agreement that the spouses made around the time they began to live together, or under the terms of a separation agreement that they made around the time they separated. If the spouses can't reach an agreement, a court can make an order about the division of property and debt. | Property and debt can be divided under the terms of a cohabitation agreement or a marriage agreement that the spouses made around the time they began to live together, or under the terms of a separation agreement that they made around the time they separated. If the spouses can't reach an agreement, a court can make an order about the division of property and debt. | ||
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===Family property, excluded property and family debt=== | ===Family property, excluded property and family debt=== | ||
The ''Family Law Act'' talks about three things when it comes to dividing property and debt, ''family property'', ''excluded property'' and ''family debt''. | The ''[[Family Law Act]]'' talks about three things when it comes to dividing property and debt, ''family property'', ''excluded property'' and ''family debt''. | ||
All property owned by either or both spouses at the date of separation is ''family property''. This includes things like real property, bank accounts, pensions, business, debts owing to a spouse and so forth. Family property is presumed to be shared equally between spouses, regardless of their use of or contribution to that property. | All property owned by either or both spouses at the date of separation is ''family property''. This includes things like real property, bank accounts, pensions, business, debts owing to a spouse and so forth. Family property is presumed to be shared equally between spouses, regardless of their use of or contribution to that property. | ||
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====Living together and marrying==== | ====Living together and marrying==== | ||
Under s. 3(3) of the ''Family Law Act'', a relationship between spouses begins | Under s. 3(3) of the ''[[Family Law Act]]'', a relationship between spouses begins | ||
<blockquote><tt>... on the earlier of the following:</tt></blockquote> | <blockquote><tt>... on the earlier of the following:</tt></blockquote> | ||
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====Separating==== | ====Separating==== | ||
Although a married couple are married until they get a divorce, the key date for the division of property and debt under the ''Family Law Act'' is the date of separation and this date is important for both married spouses and unmarried spouses. | Although a married couple are married until they get a divorce, the key date for the division of property and debt under the ''[[Family Law Act]]'' is the date of separation and this date is important for both married spouses and unmarried spouses. | ||
Although many people move out when they separate, other couples separate and remain living under the same roof. A physical separation is not necessary to separate, there must simply be an intention to end the relationship and the intimacies that go along with it. Often the decision to separate is made by both spouses, but it only takes one spouse decide to end a relationship, and a spouse's decision to separate doesn't require the consent of the other spouse. | Although many people move out when they separate, other couples separate and remain living under the same roof. A physical separation is not necessary to separate, there must simply be an intention to end the relationship and the intimacies that go along with it. Often the decision to separate is made by both spouses, but it only takes one spouse decide to end a relationship, and a spouse's decision to separate doesn't require the consent of the other spouse. | ||
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====Family property==== | ====Family property==== | ||
Under s. 84(1) of the ''Family Law Act'', family property is the property owned by one or both spouses on the date of their separation, including any property bought after separation with family property. Section 84(2) give some examples of specific assets that are family property, including: | Under s. 84(1) of the ''[[Family Law Act]]'', family property is the property owned by one or both spouses on the date of their separation, including any property bought after separation with family property. Section 84(2) give some examples of specific assets that are family property, including: | ||
*interests in companies, businesses, partnerships and ventures, | *interests in companies, businesses, partnerships and ventures, | ||
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==Property claims and people who aren't spouses== | ==Property claims and people who aren't spouses== | ||
People are not spouses within the ''Family Law Act'' definition at s. 4 cannot make a claim for the division of property or debt through that act. When people who aren't spouses own an asset jointly, like a house or a car, they are presumed to each be entitled to half of the value of that property. Where a person claim a share of property owned only by the other person, he or she will have to prove an entitlement to that asset through the principles of the common law. | People are not spouses within the ''[[Family Law Act]]'' definition at s. 4 cannot make a claim for the division of property or debt through that act. When people who aren't spouses own an asset jointly, like a house or a car, they are presumed to each be entitled to half of the value of that property. Where a person claim a share of property owned only by the other person, he or she will have to prove an entitlement to that asset through the principles of the common law. | ||
===Jointly-owned assets=== | ===Jointly-owned assets=== | ||
