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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)
Revision as of 16:44, 27 March 2013
, 16:44, 27 March 2013→Immovable Property: Real Property
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====The General Rule==== | ====The General Rule==== | ||
Generally speaking, subject to the exception discussed below, there is nothing that can be done to stop someone from selling or otherwise dealing with real property located outside of British Columbia, even property that would normally qualify as a family asset. Usually, the only way to protect that asset from sale or being used as collateral is to start a | Generally speaking, subject to the exception in the ''Family Law Act'' discussed below, there is nothing that can be done to stop someone from selling or otherwise dealing with real property located outside of British Columbia, even property that would normally qualify as a family asset. Usually, the only way to effectively protect that asset from sale or being used as collateral is to start a court proceeding in the jurisdiction in which the property is located. | ||
The courts of this province will, however, usually compensate a spouse for an interest in out-of-province property by reapportioning the property that the court can deal with, property located inside British Columbia, to compensate for the property that it can't deal with. Here's an example: | The courts of this province will, however, usually compensate a spouse for an interest in out-of-province property by reapportioning the property that the court can deal with, property located inside British Columbia, to compensate for the property that it can't deal with. Here's an example: | ||
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====The ''Family Law Act''==== | ====The ''Family Law Act''==== | ||
Under | Under Division 6 of Part 5 of the ''Family Law Act'', the Supreme Court of British Columbia may, in certain circumstances, make orders respecting the ownership and division of property located outside British Columbia. If the court has the ability to make orders dividing property located outside the province, it may also make an order to preserve the property from being disposed of. Section 109(2)(b) says this: | ||
<blockquote><tt>(b) if the court is satisfied that it would be enforceable against a spouse in the jurisdiction in which the extraprovincial property is located,</tt></blockquote> | |||
<blockquote><blockquote><tt>(i) preserve the extraprovincial property ...</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(iv) provide for any other matter in connection with the extraprovincial property;</tt></blockquote></blockquote> | |||
The first stumbling block is to figure out whether the court can divide the out of province property, and that requires a difficult analysis under ss. 106, 107 and 108 of the act. Assuming the court can make such orders, the next step is to find out whether the order would "enforceable against a spouse" in the place where the property is located. If the answer to both questions is yes, then the court may make an order for the preservation of the foreign property. | |||
This part of the act is extremely complicated and you should get advice from a lawyer whenever you may need to deal with movable and immovable property located outside of British Columbia. | |||
===Movable Property: Financial Assets=== | ===Movable Property: Financial Assets=== | ||
