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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 13:41, 20 May 2013
, 13:41, 20 May 2013→Dividing property and debt under the Family Law Act
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<blockquote>To divide property and debt under the ''Family Law Act'', you first have to figure out whether you're a "spouse" as defined by s. 3(1)(a) or 3(1)(b)(i). You must either be married or have lived with your partner in a marriage-like relationship for at least two years.</blockquote> | <blockquote>To divide property and debt under the ''Family Law Act'', you first have to figure out whether you're a "spouse" as defined by s. 3(1)(a) or 3(1)(b)(i). You must either be married or have lived with your partner in a marriage-like relationship for at least two years.</blockquote> | ||
If you're not a spouse, ''stop'' and read the discussion in the introductory section of this chapter, [[Property & Debt in Family Law Matters#Property claims and people who aren't spouses|Property & Debt]], about the property rights of people who aren't spouses. People who don't qualify as spouses are entitled to share in property that they both own and may have | If you're not a spouse, ''stop'' and read the discussion in the introductory section of this chapter, [[Property & Debt in Family Law Matters#Property claims and people who aren't spouses|Property & Debt]], about the property rights of people who aren't spouses. People who don't qualify as spouses are entitled to share in property that they both own and may have an interest in property only one of them owns under the common law relating to trusts and equity. | ||
'''Step Two''' | '''Step Two''' | ||
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'''Step Three''' | '''Step Three''' | ||
<blockquote>Next you have to check that you're making your claim within the ''time limits'' set out in s. 198(2). Married spouses must bring their claims for the division of property and debt within two years of the date of their divorce or a declaration | <blockquote>Next you have to check that you're making your claim within the ''time limits'' set out in s. 198(2). Married spouses must bring their claims for the division of property and debt within two years of the date of their divorce or a declaration that their marriage is a nullity; unmarried spouses must bring their claims within two years of the date of their separation.</blockquote> | ||
If you're outside the time limits, ''stop''. Talk to a lawyer about whether you're within the limitation period to ask for an interest in property under the common law relating to trusts and equity. | If you're outside the time limits, ''stop''. Talk to a lawyer about whether you're within the limitation period to ask for an interest in property under the common law relating to trusts and equity. | ||
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<blockquote>Now you have to figure out whether there's ''another court'' somewhere outside of British Columbia that has the authority to make an order affecting you, your spouse, and your property. Most of the time the <span class="noglossary">answer</span> to this question will be no. | <blockquote>Now you have to figure out whether there's ''another court'' somewhere outside of British Columbia that has the authority to make an order affecting you, your spouse, and your property. Most of the time the <span class="noglossary">answer</span> to this question will be no. | ||
However, if:</blockquote> | However, if:</blockquote> | ||
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::*you have a cohabitation agreement or a marriage agreement that requires the laws and courts of another place to be used, | ::*you have a cohabitation agreement or a marriage agreement that requires the laws and courts of another place to be used, | ||
<blockquote>there may be a problem. If another court can make an order, you then have to figure out whether the courts of British Columbia should be | <blockquote>there may be a problem. If another court can make an order, you then have to figure out whether the courts of British Columbia should be dealing with your proceeding at all under s. 106.</blockquote> | ||
If your case is better dealt with by another court, ''stop'' because you'll need to start a court proceeding there. If not, you can continue here. | If your case is better dealt with by another court, ''stop'' because you'll need to start a court proceeding there. If not, you can continue here. | ||
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::*certain insurance payments. | ::*certain insurance payments. | ||
<blockquote>Property and debt that you got ''before your relationship'' is generally excluded property and personal debt.</blockquote> | <blockquote>Property and debt that you got ''before your relationship'' is generally excluded property and personal debt that only you will keep and be responsible for.</blockquote> | ||
'''Step Six''' | '''Step Six''' | ||
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::*What is the value of each asset now? | ::*What is the value of each asset now? | ||
::*Did you buy any family property using the proceeds of sale of excluded property? If so, how much did you put the purchase of the family property? | |||
::*Is there any property that was bought after separation with family property? If so, what is the value of those assets? | ::*Is there any property that was bought after separation with family property? If so, what is the value of those assets? | ||
::*What are the debts owed by you, by your spouse, or by both of you, and how much is owing now? | ::*What are the debts owed by you, by your spouse, or by both of you, and how much is owing now? | ||
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'''Step Seven''' | '''Step Seven''' | ||
<blockquote>Now that you've got the numbers worked out, you | <blockquote>Now that you've got the numbers worked out, you may want to think about whether an ''equal division'' of family property and family debt would be "significantly unfair," bearing in mind the factors listed in s. 95(2). If it wouldn't be significantly unfair, then split the family property and family debt equally and go on with your life. If it would be significantly unfair, then you've got to figure out what a fair split looks like and I wish you the best of luck sorting this out in a speedy manner.</blockquote> | ||
<blockquote>Finally, you | <blockquote>Finally, you may also want to think about whether there's a reason to share in some or all of the ''excluded property''. Excluded property can be divided if there's property outside of British Columbia that ought to be family property but can't easily be divided, or if it would be "significantly unfair" not to share excluded property, bearing in mind the factors listed in s. 96(b). If there's no reason to share excluded property, carry on. If it there is a reason to share that property, then you've got to figure out what a fair division looks like.</blockquote> | ||
==Orders for the division of property and debt== | ==Orders for the division of property and debt== | ||
