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Difference between revisions of "Protecting Property and Debt in Family Law Matters"
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Protecting Property and Debt in Family Law Matters (view source)
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Once you've decided that your relationship can't continue, and you're sure that it can't continue, you need to separate. This doesn't mean that you and your spouse need to move into separate homes, but you need to announce your <span class="noglossary">decision</span> and you should probably do it in writing so that you have a record of the date of separation. | Once you've decided that your relationship can't continue, and you're sure that it can't continue, you need to separate. This doesn't mean that you and your spouse need to move into separate homes, but you need to announce your <span class="noglossary">decision</span> and you should probably do it in writing so that you have a record of the date of separation. | ||
Under s. 81(b) of the provincial ''[[Family Law Act]]'', when separation happens each spouse takes a one-half in all family property as tenants in common, regardless of how the property was owned before separation, and becomes responsible for one-half of all family debt. | Under s. 81(b) of the provincial ''[[Family Law Act]]'', when separation happens each spouse takes a one-half interest in all family property as tenants in common, regardless of how the property was owned before separation, and becomes responsible for one-half of all family debt. It can be critical to protect your share of the family property from creditors, your spouse's bankruptcy, or court orders made in other court proceedings. | ||
While it's always a good idea to consult with a lawyer if you have a family law problem, be especially sure to do so if you're not certain whether separating would be helpful or harmful. | While it's always a good idea to consult with a lawyer if you have a family law problem, be especially sure to do so if you're not certain whether separating would be helpful or harmful. | ||
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*The order includes not just family property but all "property at issue," which might include excluded property. | *The order includes not just family property but all "property at issue," which might include excluded property. | ||
This is an important order and should probably be applied for whenever a claim is being made for the division of property. Again, this is a matter of simply being prudent. You may have no cause to believe that your spouse would do something that would jeopardize your interests, but | This is an important order and should probably be applied for whenever a claim is being made for the division of property. Again, this is a matter of simply being prudent. You may have no cause to believe that your spouse would do something that would jeopardize your interests, but better safe than sorry. | ||
===The Rules of Court=== | ===The Rules of Court=== | ||
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#obtain a financial restraining order under one or more of s. 91 of the ''Family Law Act'', s. 39 of the ''Law and Equity Act'' or Rule 12-4 of the Supreme Court Family Rules. | #obtain a financial restraining order under one or more of s. 91 of the ''Family Law Act'', s. 39 of the ''Law and Equity Act'' or Rule 12-4 of the Supreme Court Family Rules. | ||
The problem here is that property that is owned only by your spouse, or by both of you as joint tenants, may be vulnerable to your spouse's creditors and in the event of his or her bankruptcy. Say, for example, your spouse has put up his or her car as collateral for a loan. You would normally be entitled to one-half the car's value as a family property, assuming the car was bought during your relationship. If your spouse defaults on the loan, the car can be seized and you could find, especially where there are few other assets, that you | The problem here is that property that is owned only by your spouse, or by both of you as joint tenants, may be vulnerable to your spouse's creditors and in the event of his or her bankruptcy. Say, for example, your spouse has put up his or her car as collateral for a loan. You would normally be entitled to one-half the car's value as a family property, assuming the car was bought during your relationship. If your spouse defaults on the loan, the car can be seized and you could find, especially where there are few other assets, that you get no compensation for your interest in the car's value once the lender's default fees and legal fees are added on. | ||
Your spouse's creditors or trustee in bankruptcy will not usually be able to seize assets held only in your name or your interest in property as a tenant in common unless you are responsible for your spouse's debts for some reason, like co- | Your spouse's creditors or trustee in bankruptcy will not usually be able to seize assets held only in your name, or your interest in property as a tenant in common, unless you are responsible for your spouse's debts for some reason, like having co-signed or guaranteed a loan, or having used a secondary credit card on your spouse's <span class="noglossary">account</span>. Although, under the ''Family Law Act'' both spouses are responsible for the debts incurred during their relationship, this obligation is only between spouses and doesn't give any extra rights to creditors. | ||
===Creditors=== | ===Creditors=== | ||
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*the Provincial Court cannot deal with out-of-province issues at all. | *the Provincial Court cannot deal with out-of-province issues at all. | ||
However, the ''Family Law Act'' contains some provisions that are meant to give the court ''in rem'' jurisdiction out of province under certain circumstances and, if those circumstances are met, to allow the court to make an order restraining a person from disposing of property located outside the province. Although it remains to be seen how effective this legislation will be in imposing on the authority of another jurisdiction, the | However, the ''Family Law Act'' contains some provisions that are meant to give the court ''in rem'' jurisdiction out of province under certain circumstances and, if those circumstances are met, to allow the court to make an order restraining a person from disposing of property located outside the province. Although it remains to be seen how effective this legislation will be in imposing on the authority of another jurisdiction, the Act's out-of-province restraining orders are discussed below. | ||
This area of the law is extremely complex, and you really should consider hiring a lawyer to help you whenever you have an interest in assets located outside the province. | This area of the law is extremely complex, and you really should consider hiring a lawyer to help you whenever you have an interest in assets located outside the province. | ||
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===Movable assets=== | ===Movable assets=== | ||
Bank accounts, stocks, investment accounts, and similar assets that aren't real estate are called movable assets. The | Bank accounts, stocks, investment accounts, and similar assets that aren't real estate are called movable assets. The BC Supreme Court usually has jurisdiction over immovable assets located outside of the province where the owner has attorned to the jurisdiction and accepted the court's authority. | ||
Where a spouse has attorned, the court can make a restraining order stopping the spouse from disposing of movable property located outside of British Columbia under s. 91 of the ''Family Law Act''. Inside British Columbia, a s. 91 order will stop a spouse from dealing with everything that is family property or other "property at issue," including real property. Outside British Columbia, a s. 91 restraining order will only stop a spouse from dealing with movable assets. | Where a spouse has attorned, the court can make a restraining order stopping the spouse from disposing of movable property located outside of British Columbia under s. 91 of the ''Family Law Act''. Inside British Columbia, a s. 91 order will stop a spouse from dealing with everything that is family property or other "property at issue," including real property. Outside British Columbia, a s. 91 restraining order will only stop a spouse from dealing with movable assets. | ||
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{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Megan Ellis, QC]], January 23, 2015}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
