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 14:54, 29 March 2013

1,825 bytes added ,  14:54, 29 March 2013
→‎Determining Jurisdiction
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====Determining Whether the Court Should Make Orders====
====Determining Whether the Court Should Make Orders====


Section 106(2) says when the court here can make an order under Part 5:
''You should skip this discussion if no court other than the court of British Columbia can make orders about you, your spouse and your property.''
 
Where another court might be able to make orders about the same people and the same property, s. 106(2) says when the court here can make an order under Part 5:


<blockquote><tt>(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:</tt></blockquote>
<blockquote><tt>(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:</tt></blockquote>
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#the property is here;
#the property is here;
#the spouses last lived together here; or,
#the spouses last lived together here; or,
#the court proceeding includes a claim under the ''Divorce Act''.
#the court proceeding includes a claim under the ''Divorce Act'' (the reason for this factor is that the ''Divorce Act'' requires a spouse to have lived in the province where he or she makes a claim under the act for at least one year before the court proceeding is started).


As if this wasn't complicated enough, even if the court can make an order because one of the s. 106(2) conditions are met, under s. 106(4) the court refuse to make orders for the division of property and debt. Section 106(5) says what the court must take into account in deciding to refuse to make orders:
As if this wasn't complicated enough, even if the court can make an order because one of the s. 106(2) conditions are met, under s. 106(4) the court refuse to make orders for the division of property and debt. Section 106(5) says what the court must take into account in deciding to refuse to make orders:
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====Determining the Law to Apply When the Court May Make Orders====
====Determining the Law to Apply When the Court May Make Orders====


''You should skip this discussion if no court other than the court of British Columbia can make orders about you, your spouse and your property.''


3. Under s. 108(3), where the parties have an agreement requiring the application of the laws of a particular jurisdiction, the agreement can be enforced according to the laws of that jurisdiction;
Assuming, then, that the court here has decided that it has the authority to make orders for the division of property and debt because one of the s. 106(2) factors is met, and that it hasn't decided to refuse to make orders anyway under s. 106(4), the next thing to figure out is the law that the court should use in deciding how the property and debt should be divided under ss. 107 and 108. That law could be the law of British Columbia — Part 5 of the ''Family Law Act'' — or it could be the law of another place.
 
4. Under s. 108(4), if the parties’ first common habitual residence was a jurisdiction in which the law deems spouses to be joint owners of all property or joint owners of property acquired during the marriage, then property must be divided according to


a. the terms of any agreement between the parties, or
Section 108 is just as complicated as s. 106 was, but this is what it all comes down to.


b. the law of the parties’ first common habitual residence;
#under s. 108(3), if the spouses have an agreement that says the law of a particular place must be used, the law the court must use is the law of that particular place;
#under s. 108(4), if the spouses first together lived in a place that divides property like the ''Family Law Act'' divides property, the law the court must use is the law of the place where the spouses first lived together;
#under s. 108(5), if neither of the first two circumstances apply, the law the court must use is the "applicable internal law."


5. However, if neither circumstance exists, then the parties’ rights in a claim under Part 5 must be determined by applying:
Section 107 says how you figure what the "applicable internal law" is:


a. the law of the parties’ first common habitual residence;
<blockquote><tt>The applicable internal law for the purposes of section 108 [choice of law rules] is</tt></blockquote>
<blockquote><blockquote><tt>(a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident.</tt></blockquote></blockquote>


b. if the parties’ first matrimonial domicile was outside of Canada and is not the domicile “most closely associated” with the parties’ relationship, then the law of the jurisdiction that is most closely associated with the parties’ relationship; or,
In other words, the "applicable internal law" that should be used to divide property and debt between spouses is:


c. if the parties did not have a common habitual residence, then the law of the habitual residence of the spouse applying for the order under Part 5.
#the law of the place where the spouses most recently lived together;
#the law of the place where the spouses lived together the longest; or,
#if the spouses never lived together, the law of the place where the spouse making the claim for the division of property normally lives.


6. If the court takes jurisdiction to divide property and the applicable law is the Family Law Act, the court may then make orders as appropriate under Part 5 Division 4.
In the right circumstances, the "applicable internal law" could be the ''Family Law Act''!


===Property and Debt in British Columbia===
===Property and Debt in British Columbia===
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