Define Implied in Law Contract in Family Law

Under the Family unit Police force Deed, spouses who are married or who lived together in a union-like relationship for at to the lowest degree two years are entitled to share in the holding they acquired during their human relationship, and to keep whatsoever property they each brought into the relationship. The same thing goes for debt. Spouses are equally responsible for the debt they accumulated during the relationship, merely they are separately responsible for whatever debt that they had going into the relationship.

This all sounds pretty straightforward, merely there are lots of details that can make the division of property and debt complicated.

This department talks about how property and debt are divided between spouses under the Family unit Law Act and how they used to be divided nether the Family Relations Human activity, what property is shareable family property, and what holding is excluded from division. It also looks at the role marriage agreements and cohabitation agreements can play in controlling the bear upon of the Family Law Human activity.

Introduction [edit]

The basic plan for the sectionalisation of property and debt under the provincial Family unit Law Deed is pretty straightforward. Y'all proceed what y'all bring into the relationship, and you split what yous get and accumulated (i.e. increase in value of excluded belongings) during the relationship. Of grade information technology'southward a lot more complicated than this, but that'south the basic concept the act is built on.

Role v of the Family unit Constabulary Act deals with the division of property and debt, and provides the definitions of family property and family debt , the things that are presumed to be shared between spouses, and excluded property , which is presumed to remain the property of the spouse who owns information technology. Part 6 of the Family unit Law Act talks nearly the sectionalization of pensions between spouses and says which portion of a pension is supposed to be shared and which parts remain the property of the pension fellow member.

This department looks into the nooks and crannies of Part five of the act in some detail, but it doesn't say much about pensions considering the sectionalisation of pensions can be extremely complicated. For information near that, you lot should speak to a family unit law lawyer. A alimony can be a very valuable asset. Information technology is of import to include it when dividing property.

Standing [edit]

The people who are entitled to enquire to carve up holding and debt are spouses, only not all spouses, just spouses who are married to each other or who have lived together in a matrimony-like human relationship for at least two years. Section 3 says this:

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to some other person, or

(b) has lived with another person in a spousal relationship-like human relationship, and

(i) has done and then for a continuous menstruation of at least 2 years, or

(ii) except in Parts 5 [Holding Segmentation] and half dozen [Alimony Division], has a kid with the other person.

(2) A spouse includes a former spouse.

Unmarried spouses who take lived together for less than two years are not eligible to ask for orders about the partitioning of property or debt under the Family Law Act. The rules virtually property that apply to these spouses and other people who aren't spouses are discussed in the first section in this chapter, nether the heading "property claims and people who aren't spouses," and in the chapter Family Relationships in the section Other Unmarried Relationships.

Period of entitlement [edit]

Under section 81(a) of the Family Law Deed, spouses are presumed to each exist entitled to an equal share in family unit property . Family unit property is defined at section 84(1) as:

(a) on the date the spouses separate, property

(i) that is owned by at least one spouse, or

(ii) in which at to the lowest degree i spouse has a beneficial interest

The cease date for the accumulation of family unit property is presumed to be the appointment of separation. The offset date is the date the spouses' relationship begins, and is found in the definition of excluded holding at department 85:

(1) The following is excluded from family belongings:

(a) holding acquired by a spouse before the human relationship betwixt the spouses began

The start appointment and the finish date with respect to the accumulation of family debt is stated more only in section 86:

Family debt includes all financial obligations incurred past a spouse

(a) during the menstruum start when the relationship between the spouses begins and ending when the spouses separate

As y'all tin can see, the date when "the relationship betwixt the spouses began" and the date "the spouses separate" are very important. These are the dates that mark the end of acquiring excluded belongings and personal debt, the start of acquiring shareable family property and family debt, and the end of acquiring family property and family debt.

Appointment of cohabitation and the engagement of wedlock [edit]

Section 3(3) says when a human relationship between spouses begins:

(3) A relationship between spouses begins on the before of the following:

(a) the appointment on which they began to live together in a marriage-like relationship;

(b) the date of their marriage.

For married spouses, their relationship starts on the earlier of the date they began to alive together in a spousal relationship-like relationship or got married. For unmarried spouses, once the parties have lived together for two years, their relationship as spouses is considered to have started on the date they began to alive together.

The appointment of a couple'south wedlock is pretty obvious. Information technology isn't e'er so obvious when a couple "begins" to alive together in a union-like human relationship. The judge in a 2003 case from the Saskatchewan Court of Queen's Bench, Yakiwchuk v. Oaks, 2003 SKQB 124, expressed the problem this way:

"With married couples, the relationship is easy to establish. The matrimony ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' annunciation of intent. Often people brainstorm cohabiting with little forethought or planning. Their motivation is frequently nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships exterior marriage because they did not want the legal obligations imposed past that status. Some individuals take just given no thought as to how their relationship would operate. Ofttimes the date when the cohabitation really began is blurred because people 'ease into' situations, spending more and more than time together. Agreements between people verifying when their human relationship began and how it volition operate ofttimes exercise non be."

Easily up, anyone who has e'er begun to "cohabit with petty forethought or planning?"

The date of separation [edit]

Separation usually happens when i spouse decides that the relationship cannot continue, says so, and then takes steps to stop the partnership-like qualities of the relationship, usually by stopping sleeping together, stopping doing chores for the other person, stopping going out together as a couple, and and then on. Section three(4) offers some guidance on when a spousal relationship ends.

(four) For the purposes of this Act,

(a) Spouses may be separated despite continuing to alive in the aforementioned residence, and

(b) the courtroom may consider, every bit prove of separation,

(i) advice, past one spouse to the other spouse, of an intention to divide permanently, and

(2) an activeness, taken by a spouse, that demonstrates the spouse's intention to dissever permanently.

It's easy to imagine that the appointment of separation could be argued well-nigh, specially if the spouses reconciled for a flake or if a spouse's commitment to ending the partnership-like aspect of a human relationship wavered from fourth dimension to time. In order to avoid spending money on lawyers arguing about this result, you might consider documenting the engagement of separation in some way, perhaps by sending a letter or an email to your spouse stating your intention to split. Do remember to go on a copy.

Time limits [edit]

Section 198(2) of the Family Constabulary Act sets out some important fourth dimension limits on when claims for the division of belongings and debt can be brought:

married spouses must bring their merits within two years of the appointment of their divorce or a declaration annulling their wedlock, and
single spouses must bring their merits within two years of the date of separation .

Nether department 198(5), however, the running of this time limit is considered to be suspended while the parties are engaged in family unit dispute resolution with a family dispute resolution professional. Both of these terms are defined in section one, and the running of the time limit will non finish if their dispute resolution process doesn't fall within the definition of "family unit dispute resolution" or if the spouses are not using the services of someone who falls inside the definition of "family dispute resolution professional."

A partnership of acquests [edit]

The scheme for the partitioning of property nether the Family Constabulary Human activity is technically described as a deferred partnership of acquests authorities. Nether the old Family Relations Act, property was divided under a deferred community of property regime. A "partnership of acquests" scheme for family holding means that the spouses both own all of the property caused during their relationship, whether the property is owned by ane spouse or by both spouses jointly; our model is "deferred" because the right to an equal share in this belongings doesn't arise until the spouses accept separated.

The Family Relations Act and the Family unit Police force Act [edit]

Nether the Family Relations Deed, married spouses shared in all property that was "ordinarily used for a family unit purpose." This meant that you lot didn't demand to look at who owned something on newspaper, how something was acquired, or whether property was caused before or during the relationship; what mattered was how the holding was used. For most couples, everything they had wound up being ordinarily used for a family purpose in 1 fashion or another.

Under the Family Law Act, use is irrelevant. In fact that's exactly what section 81(a) says:

spouses are both entitled to family unit holding and responsible for family debt, regardless of their respective utilize or contribution

What matters at present is when property was acquired and how property was caused. Property bought before the spouses' relationship began is presumed to be excluded property; property bought during the spouses' relationship with excluded holding is also presumed to be excluded property. Under a deferred customs of belongings regime, both spouses are presumed to have an interest in all avails on the date of separation. Under a deferred partnership of acquests regime, the spouses are presumed to have an interest in but the assets they accumulated during their relationship on the engagement of separation, except for whatever assets bought with excluded property.

Transition provisions [edit]

The Family Law Act became police force in British Columbia on 18 March 2013. All of the parts of the act near children and support applied to everyone correct away, including people who were in the middle of a court proceeding. However, under section 252(2), married spouses who had started a courtroom proceeding about the division of property or had an agreement near the division of property must continue under the sometime Family Relations Deed as if it hadn't been cancelled, unless the spouses agree otherwise:

(2) Unless the spouses hold otherwise,

(a) a proceeding to enforce, ready aside or supersede an agreement respecting property division fabricated before the coming into forcefulness of this section, or

(b) a proceeding respecting holding sectionalization started under the former Deed

must exist started or continued, as applicable, nether the former Act as if the former Act had not been repealed.

This rule only applies to married spouses because only married spouses could make holding claims nether the Family Relations Human action; it is non possible for unmarried spouses to "start or go along" a claim nether that deed.

The partitioning of family unit property under the Family Relations Act is discussed later in this section.

Who gets what nether the Family Police force Act [edit]

Property sectionalization is covered under Part v of the Family unit Law Act. The general rule for how belongings and debt get divided up is found under section 81:

Subject field to an agreement or social club that provides otherwise and except equally set out in this Part and Part 6 [Pension Division],

(a) spouses are both entitled to family holding and responsible for family debt, regardless of their respective use or contribution, and

(b) on separation, each spouse has a right to an undivided one-half involvement in all family unit property as a tenant in mutual, and is equally responsible for family debt.

The remainder of Role 5 concerns:

the definitions of "family holding" and "family debt," and what is excluded from family belongings,
the rules for how the division of belongings and debt are to be accomplished, and the exceptions to those rules,
orders for the division of holding and debt, and the circumstances when the courtroom can divide family property unequally or carve up excluded property, and
agreements for the partitioning of property when the courtroom may set those agreements bated.

Family property and family debt [edit]

Family unit property is defined at department 84(1) as all of the property endemic by either or both spouses on the engagement of their separation . Family holding includes property that is bought after separation with family property, for example if a spouse uses money from a joint bank business relationship to purchase a new car, after separation, the new automobile will be family property. Simply stated, if the original source of the funds used to purchase a new asset after separation is from family belongings (i.e. utilise tracing provisions), the new asset will also exist institute to exist family property even though the new asset was purchased after separation. Likewise, if a spouse owns real property with a third party(i.due east. with a parent) that portion of the real property that is registered in the spouse'southward name may be found to exist family property, subject area e'er to trust claims made past the third party.

Section 84(2) gets into the specifics of the sorts of things that might be family unit property:

(2) Without limiting subsection (1), family unit property includes the following:

(a) a share or an involvement in a corporation;

(b) an interest in a partnership, an association, an system, a business or a venture;

(c) property owing to a spouse

(i) equally a refund, including an income revenue enhancement refund, or

(2) in return for the provision of a expert or service;

(d) coin of a spouse in an business relationship with a financial institution;

(due east) a spouse'south entitlement under an annuity, a pension, a retirement savings plan or an income plan;

(f) property, other than property to which subsection (iii) applies, that a spouse disposes of later on the relationship betwixt the spouses began, but over which the spouse retains authority, to be exercised alone or with some other person, to require its return or to direct its use or farther disposition in whatsoever way;

(g) the corporeality by which the value of excluded property has increased since the afterward of the appointment

(i) the relationship between the spouses began, or

(ii) the excluded property was acquired.

(3) Despite subsection (1) of this section and subject field to department 85 (1) (e), family belongings includes that function of trust property contributed by a spouse to a trust in which

(a) the spouse is a casher, and has a vested interest in that function of the trust belongings that is non subject to divestment,

(b) the spouse has a power to transfer to himself or herself that office of the trust holding, or

(c) the spouse has a ability to stop the trust and, on termination, that part of the trust holding reverts to the spouse.

Boiling this all down somewhat, family unit property includes:

a spouse'due south business, regardless of the nature of the business concern involvement,
coin owed to a spouse,
depository financial institution accounts, savings accounts, investment accounts and alimony accounts,
family property that a spouse transferred after separation but tin become back, and
property in a trust that the spouse created and can get back.

Perhaps about importantly, under section 84(2)(g), family property includes the increase in value of a spouse'due south excluded property after it was received or brought into the human relationship.

The definition of family debt is at section 86 and is much shorter:

Family debt includes all financial obligations incurred by a spouse

(a) during the period beginning when the relationship between the spouses begins and ending when the spouses split up, and

(b) afterwards the date of separation, if incurred for the purpose of maintaining family property.

In other words, all of the debt accumulating from the date the spouses began to alive together or got married, whichever is earlier, to the date of separation is family debt. Family debt includes debt that is incurred subsequently separation if the debt was incurred for family property, for example if a spouse takes out a loan to brand the mortgage payments on the family habitation. Since the family home is family unit holding, the loan is a family debt that both spouses are responsible for.

Separation [edit]

When the spouses separate, all of the family property endemic by either or both spouses becomes every bit owned by both spouses as tenants in mutual. If just i spouse owns an nugget, both of the spouses become equal owners of the nugget as tenants in common. If both spouses own an nugget as joint tenants, the joint tenancy is severed and both of the spouses become equal owners of the asset every bit tenants in common. This is all a bit complicated to explain, so please bear with me.

How property is owned [edit]

At that place are two ways that more than than one person tin can own the same holding in British Columbia: they can ain the holding as "joint tenants" or every bit "tenants in common."

When two or more people own a affair equally joint tenants, they are each owners of the whole thing. This is a fuzzy kind of shared ownership because the interests of one owner tin't be separated out from the interests of the other because they each own the whole thing. To put information technology another fashion, a joint tenant doesn't ain a item slice of the pie, a joint tenant owns the whole pie.

When a joint tenant dies, their interest in the asset disappears, and the surviving articulation tenants continue to own the whole asset every bit they always had. Equally a result, joint tenancies are extremely handy manor planning tools.

When people own a matter as tenants in common, each owner's interest in a property is carve up and distinct. The tenants in common of a property each own their particular piece of the pie; collectively, they all own the whole pie, but individually they just ain their personal share.

Because each owner'due south interest is separate from the other owners, a tenant in common tin sell their share in the nugget to someone else, put a mortgage on their interest or apply it every bit collateral, or give it to someone else as a souvenir. If a tenant in common dies, their interest in the thing becomes a part of their estate to exist distributed co-ordinate to their will.

The issue of the Separation [edit]

Section 81(b) of the Family Law Deed states:

on separation, each spouse has a correct to an undivided half interest in all family property every bit a tenant in common, and is equally responsible for family debt.

From a family law perspective, the most important thing most owning an asset as tenants in mutual, which is how assets are owned after the spouses dissever, is this idea of 2 dissever interests in an nugget. Say the family unit dwelling is registered in only one spouse'southward name and that spouse goes bankrupt. If there has been a separation and each spouse takes a one-half interest equally a tenant in mutual, the only part of the firm that can be taken by the bankrupt spouse'due south trustee is the bankrupt spouse's one-one-half interest; the other spouse'southward interest in that asset will be preserved from the bankrupt spouse's creditors, and it doesn't matter who owns the asset on paper. This can be hugely of import.

Family unit law lawyers describe the effect of a separation as "crystallizing" the spouses' interests in the family unit property considering the separation makes each spouse the legal owner of half of the family assets in a style that is also bounden on people outside the relationship, like creditors, trustees in bankruptcy, potential purchasers, and so forth. After a separation happens, all a creditor tin lien or seize to secure or pay a debt is the debtor'due south half-share of an asset, regardless of whether the debtor was the sole owner or the articulation owner of the asset before the separation.

Under the Family Law Act in that location is no requirement that the parties start a courtroom proceeding or sign an agreement in society to be separated.

The valuation of holding and valuation appointment [edit]

Although the pool of family property to exist shared between spouses is crystallized when the separation happens, nether department 87(b), the value of the family property is not stock-still until the engagement of the trial or agreement that divides the property. This makes sense, because it can accept two or three years for the sectionalization of property to wrap upwardly at a trial, and information technology can take four or five months to finish an agreement for the sectionalization of property. With respect to daily apply banking company accounts (i.east. bank account where your pay is deposited and you lot pay your monthly bills), it has get more common for the court to value such bank accounts based on its value as at the date of separation instead of the date of the trial or agreement.

Under section 87(a), the value of property is its off-white market value , the amount a reasonable buyer would pay for the holding in its current condition, not the purchase price of the belongings, the insured value of the property, or the replacement cost of the property. In other words, the value of the reconstituted leather living room suite you got from the Brick for $999 v years agone isn't what you paid for information technology, it's the $100 that someone would probable requite you for it at the date of the trial or agreement.

Excluded property [edit]

The definition of family holding at department 84 starts from the supposition that all property either or both spouses own on the engagement of separation is shareable family property. Nether section 85(two), the spouse who claims that an asset should be excluded from the pool of family property is responsible for proving that the asset is excluded property .

Excluded property is divers at section 85(1):

(1) The post-obit is excluded from family belongings:

(a) property acquired by a spouse before the relationship betwixt the spouses began;

(b) gifts or inheritances to a spouse;

(b.1) gifts to a spouse from a third party;

(c) a settlement or an award of amercement to a spouse every bit compensation for injury or loss, unless the settlement or award represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(d) money paid or payable under an insurance policy, other than a policy respecting property, except whatever portion that represents compensation for

(i) loss to both spouses, or

(ii) lost income of a spouse;

(e) holding referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;

(f) belongings held in a discretionary trust

(i) to which the spouse did not contribute,

(two) of which the spouse is a beneficiary, and

(iii) that is settled by a person other than the spouse;

(m) property derived from holding or the disposition of property referred to in any of paragraphs (a) to (f).

To boil all this down, a spouse's excluded property is all the property that the spouse owns on the engagement of cohabitation or the date of wedlock, whichever is before. Other property acquired during the relationship can likewise be a spouse'due south excluded property, including:

gifts (provided that the gift is to the spouse lonely and not a souvenir to the couple),
inheritances,
court awards,
insurance payments, and
property held in a trust that was contributed by someone else.

Perhaps about importantly, nether section 85(1)(1000), excluded property includes property bought during the relationship with excluded property. Say, for example, that a spouse receives an inheritance of $10,000 and buys a collection of vintage Pyrex. The Pyrex collection would be that spouse'due south excluded property because it was bought with excluded property, even if the Pyrex collection was used in the day-to-day form of the couple's life together. Think, whether something was "unremarkably used for a family purpose" is not a consideration nether the Family Law Act.

Withal, where a married person puts what would exist excluded holding in the name of the other spouse, information technology may be that the excluded property becomes family holding. Similarly, where 1 spouse'south parent gives money or property during the relationship, the other spouse might argue that it was a gift to the couple and is non excluded property. The police in this expanse is in flux (as there are currently two lines of authority), so it is hard to give a definitive reply as to what law applies. Even lawyers find this surface area of law difficult, so do not be upset if y'all are confused about this area of law. If you are intent on reading the cases, a reasonably recent Supreme Courtroom conclusion, McManus 5 McManus, 2019 BCSC 123, cites and discusses several of the leading cases (meet paragraph 27 of the decision).

Taking stock at the commencement of a relationship [edit]

As yous can run across, it's rather important to know what y'all owned when y'all and your spouse began to live together. If you are just starting a relationship, hither's what you do.

First, get together the documents listed below for the flow that spans the date on which you lot and your spouse began to live together or got married, whichever is before:

statements for all financial accounts, including savings accounts, investment accounts, RRSP accounts, and other retirement savings accounts,
statements for whatsoever workplace pension plans,
statements for all credit accounts, including credit cards, loans, mortgages, and lines of credit,
your personal income tax render, complete with all of the schedules and attachments,
your BC Assessments for all real property, or, if y'all desire to be more accurate than that, proper appraisals,
black book values or dealer quotes for any vehicles yous ain,
appraisals for works of art and collections, and
annihilation else that helps to establish the value of something you lot brought into the human relationship in a credible fashion.

Next, in one case you've gathered these documents, staple them together and go on them together in some place that you're not likely to lose them, like a safety deposit box.

You should however be able to assemble much the same drove of documents even if you lot've already been married or living together for some time. Banks and other fiscal institutions will requite you copies of onetime statements, but there will be a accuse; pension plan administrators should be able to provide onetime values; and, BC Assessments for past years are available online. You lot may, however, have a trouble valuing former vehicles.

Keeping rail during a human relationship [edit]

It's also important that you keep track of new excluded property caused during your human relationship, and what's going on with the excluded property you lot brought into the relationship. It may be easiest to keep a journal that:

shows the dates and amounts of any inheritances, gifts, courtroom awards, and insurance gain received during the relationship,
tracks coin received from the sale of excluded holding, and what you did with the money, specially if the money was pooled with your spouse's coin to buy something,
with respect to gifts, keep documents evidencing the intention of the donor (i.due east. a letter or card from the donor parent confirming that the gift of $100,000 was to you and not to you and your spouse),
tracks holding bought in exchange for excluded holding,
shows the intent of whatsoever souvenir or transfer of belongings, and
records any changes in the value of excluded property during the relationship.

Retrieve, under section 85(2) it's upward to the person claiming that the property is excluded belongings to prove information technology.

Who got what under the Family Relations Act [edit]

Because of the transition provisions of section 252 of the Family Law Act, the former Family Relations Act, even though it'south been cancelled, volition still utilize to determine the division of property between married spouses if:

they started a court proceeding to divide property earlier 18 March 2013, the date when the Family Police force Act came into event,
a spouse wants to start a courtroom proceeding to enforce or set aside an agreement about belongings that was signed before 18 March 2013.

Equally a resut, it's going to exist important to know how family property is divided under the Family Relations Act for a while longer.

The partition and distribution of property between married spouses was governed by Parts v and half dozen of the Family Relations Act. Part 5 of the act dealt with the division of holding, including personal property, financial assets, and real estate. Role six dealt with the division of pensions. Unmarried couples, including couples who qualify every bit unmarried spouses, were expressly excluded from the parts of the act that deal with property.

The presumption of equal sharing [edit]

Under this one-time law, when a marriage broke down, each spouse was presumed to have a half interest in all assets that qualified every bit family assets. Section 56 of the Family Relations Deed said that:

(1) Discipline to this Part and Part half dozen, each spouse is entitled to an interest in each family asset ...

(2) ... as a tenant in common.

Every bit long equally an asset qualified under the human activity as a family asset, each spouse was presumed to have a one-one-half involvement in that nugget. Family assets were defined in section 58(2) of the act, and the focus under the deed was on how an asset was used during the human relationship rather than on who bought it, when information technology was bought, or how information technology was bought:

Belongings owned by one or both spouses and usually used past a spouse or a pocket-size child of either spouse for a family purpose is a family asset.

This section cast a very broad net: as long as an nugget was owned by a spouse and was ordinarily used for a family purpose, the asset would be a "family unit asset" for the purposes of the Family unit Relations Deed, and information technology didn't matter whether the nugget was brought into the marriage past one spouse, or bought during the marriage.

To summarize, when the marriage broke down, the spouses were presumed to own all family avails equally, no matter whose name the asset was in or whether the asset was brought into the marriage past one spouse or bought during the spousal relationship. This presumption under the former law, yet, only applied between spouses. As far as the residue of the world was concerned, the only owner of an asset was the person with legal championship to the asset, which might be:

one of the spouses,
both spouses as joint tenants,
both spouses as tenants in mutual, or
one or both spouses, forth one or more other people, either as joint tenants or as tenants in common.

The triggering events [edit]

Nether the old Family Relations Deed, when a triggering event happened, all of the property owned past either or both spouses became every bit owned by both spouses every bit tenants in common. Even if merely ane spouse owned an asset, both of the spouses became equal owners of that asset as tenants in mutual. If both spouses owned an nugget as joint tenants, the joint tenancy was severed and both of the spouses became equal owners of the asset equally tenants in common.

Family law lawyers described the upshot of a triggering consequence as "crystallizing" the interests of the spouses in the family assets considering the triggering consequence made each spouse a legal owner of one-half of the family assets in a way that was as well binding on people exterior the spousal relationship, like creditors, trustees in bankruptcy, potential purchasers, and and so forth. After a triggering outcome happened under the old Family Relations Act, all a creditor could put a lien on or seize was the debtor's half-share of an asset, regardless of whether the debtor was the sole owner or the articulation owner of the asset before the triggering event.

Section 56(ane) of the Family Relations Human activity described four triggering events:

when the parties made and signed a separation agreement,
when the court fabricated a annunciation that the spouses had no reasonable prospect of getting back together and resuming married life,
when the court made an club for divorce, and
when the marriage was annulled.

One time any one of these triggering events happened, each spouse took a one-half legal interest in all of the family assets as a tenant in common, regardless of who bought the asset, who used to own the asset, or when the asset was bought. This new state of affairs (created at the point of the triggering event) lasted until the sectionalization of the assets was finally determined by a court social club or the parties' agreement.

The equal and unequal sectionalisation of family assets [edit]

Under section 56 of the Family Relations Act, each spouse was presumed to have a half interest in all family assets. This was, however, simply a presumption, a presumption that could be challenged. When assets were divided more in ane spouse's favour than the other, the avails 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 i political party to keep more of a pension or more of an inheritance, for example, fifty-fifty though all the other family assets might have been divided equally.

Section 65(i) of the Family unit Relations Act described the factors the courtroom could have into account in deciding whether an equal division of the family avails would accept been unfair:

(a) the duration of the wedlock,

(b) the elapsing of the catamenia during which the spouses have lived split and apart,

(c) the appointment when belongings was acquired or disposed of,

(d) the extent to which property was caused by i spouse through inheritance or gift,

(due east) the needs of each spouse to go or remain economically contained and self sufficient, or

(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of holding or the capacity or liabilities of a spouse

Family assets were nearly commonly reapportioned when:

the matrimony was short, say less than half dozen or vii years, and ane of the spouses brought the majority of the avails into the relationship,
one of the spouses was responsible for racking up a lot of debts not related to spending for family purposes,
some of the assets were located outside of British Columbia,
one of the spouses required more than one-half of the family assets to go financially independent,
1 of the spouses had wrongfully disposed of family assets or negligently allowed them to decrease in value, especially if this happened later separation, or
some of the avails had been bought with a spouse's inheritance.

Defining "family unit assets" [edit]

Not all assets were shareable family assets. The sections of the Family Relations Act quoted higher up only provided for the division of assets that qualified equally family unit assets; other sorts of assets might have been exempt from division, so that the spouse who owned the asset would be immune to keep that asset, without necessarily having to compensate the other spouse for its value.

Family assets were defined in section 58 of the Family Relations Act as:

(2) Property endemic by ane or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family unit purpose is a family asset.

(3) Without restricting subsection (ii), the definition of family asset includes the following:

(a) if a corporation or trust owns property that would be a family nugget if owned by a spouse,

(i) a share in the corporation, or

(two) an interest in the trust

owned by the spouse;

(b) if property would be a family unit asset if endemic past a spouse, property

(i) over which the spouse has, either alone or with another person, a ability of appointment exercisable in favour of himself or herself, or

(ii) disposed of by the spouse but over which the spouse has, either lone or with another person a power to revoke the disposition or a power to use or dispose of the belongings;

(c) money of a spouse in an business relationship with a savings institution if that business relationship is ordinarily used for a family purpose;

(d) a right of a spouse under an annuity or a alimony, dwelling ownership or retirement savings plan;

(e) a right, share or an involvement of a spouse in a venture to which coin or money's worth was, directly or indirectly, contributed by or on behalf of the other spouse.

If an asset did not fall into these categories, it may non have been something that the spouses were both entitled to share. The basic rule of thumb under the old law was this: an asset was a family unit asset if it was ordinarily used or was intended to be commonly used for a family purpose.

Cohabitation agreements and marriage agreements [edit]

Cohabitation agreements are agreements signed by people who will be or are living together, who may or may not wind up getting married subsequently on down the road.

Spousal relationship agreements are signed by people who will be getting, or are, married. Although in that location'southward no reason why these agreements tin can't be signed well into a relationship, they're usually signed on or shortly subsequently the appointment the parties brainstorm to live together or marry.

These agreements are often used to say how property and debt volition be handled during a human relationship and how it will be allocated if the couple separates. Nether section 93(1) of the Family Law Human activity, they must be in writing and be signed by each spouse in the presence of at to the lowest degree one other person as a witness. It is highly recommended that you both obtain independent legal advice from a lawyer (do not use the aforementioned lawyer, each must accept a separate lawyer) before signing such an agreement to ensure that each political party fully understands the nature and circumstances of the agreement and what is being given up.

However, since many people are content with the basic plan for the partition of property set up out in the Family Police Human action, the question is often about what a cohabitation agreement or a marriage agreement can do that would be improve than the default plan that the act expects. Here are some ideas. An agreement could:

clarify which holding is excluded belongings and what its value was when the relationship began,
let a spouse to go on not just their excluded holding simply the growth in value of their excluded property,
say that there will be no shared family holding, except for holding that is registered in both spouses' names or that the parties hold in writing will exist shared family unit holding,
give a share of a spouse's excluded belongings to the other spouse, including a share which increases over time,
brand all excluded holding shareable family unit property,
say how property bought during the relationship volition be endemic if information technology's bought with both spouse'south excluded property, or
say what will happen if a spouse's excluded holding decreases in value during the relationship.

I'm sure at that place are other options too.

Resources and links [edit]

Legislation [edit]

Family Law Act
Family Relations Act

Links [edit]

Dial-A-Law Script "Dividing Property and Debts"
Justice Education Club'due south handbook Parenting After Separation: Finances
Legal Services Society'due south Family unit Law website's information page "Holding & debt"
- See "Dividing holding and debts"

This data applies to British Columbia, Canada. Last reviewed for legal accuracy past Helen Chiu, May 14, 2019.