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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)
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| link = [http://www.clicklaw.bc.ca/resource/1639 How to divide property and debts] | | link = [http://www.clicklaw.bc.ca/resource/1639 How to divide property and debts] | ||
}}If a couple are able to agree on how their property and debts will be divided, they can make a separation agreement summarizing the terms of their settlement. However, if they can't agree, | }}If a couple are able to agree on how their property and debts will be divided, they can make a separation agreement summarizing the terms of their settlement. However, if they can't agree, one of them will likely start court proceedings and the court will make an order dividing their property and debt for them. | ||
This section talks about how property and debt are divided between spouses by the court through court orders made under the ''[[Family Law Act]]'', and by spouses through separation agreements. It also discusses when excluded property can be shared between spouses, when family property can be divided unequally, and when the court can make orders about property located outside British Columbia. | This section talks about how property and debt are divided between spouses by the court through court orders made under the ''[[Family Law Act]]'', and by spouses through separation agreements. It also discusses when excluded property can be shared between spouses, when family property can be divided unequally, and when the court can make orders about property located outside British Columbia. | ||
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==Introduction== | ==Introduction== | ||
Whether you're able to settle how property and debt are going to be shared by agreement or if you're going to need a court order, it's important to understand how the ''[[Family Law Act]]'' works. If you're going to start a court proceeding, the court will be required to divide property using the rules set out in the | Whether you're able to settle how property and debt are going to be shared by agreement or if you're going to need a court order, it's important to understand how the ''[[Family Law Act]]'' works. If you're going to start a court proceeding, the court will be required to divide property using the rules set out in the Act; if you're going to be able to settle your property issues, the Act will be used to measure the fairness of your agreement if either of you ever tries to get out of the agreement in the future. | ||
===How the ''Family Law Act'' divides property and debt=== | ===How the ''Family Law Act'' divides property and debt=== | ||
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=====Paying for dispute resolution processes===== | =====Paying for dispute resolution processes===== | ||
Under s. 89, the court can make an order for the interim distribution of some of the family property to pay for: | Under s. 89, the court can make an order for the interim distribution of some of the family property to a party to pay for: | ||
#the cost of the court proceeding, | #the cost of the court proceeding, | ||
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A separation agreement is a contract that records a settlement of the issues that arise when a relationship ends. Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be reasonable, and the parties must be able to get along well enough to negotiate the deal and then put it into action it when it's done. | A separation agreement is a contract that records a settlement of the issues that arise when a relationship ends. Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be reasonable, and the parties must be able to get along well enough to negotiate the deal and then put it into action it when it's done. | ||
The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. Although spouses are presumed to be each half responsible for any debt incurred during the relationship, you can make whatever other arrangements you want, as long as both spouses agree to those arrangements and they're reasonably fair. In fact, s. 92 says this: | The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship as well as the increase in the value of any property brought in. Although spouses are presumed to be each half responsible for any debt incurred during the relationship, you can make whatever other arrangements you want, as long as both spouses agree to those arrangements and they're reasonably fair. In fact, s. 92 says this: | ||
<blockquote><tt>Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more the following:</tt></blockquote> | <blockquote><tt>Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more the following:</tt></blockquote> | ||
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===Making a valid agreement=== | ===Making a valid agreement=== | ||
Under | Under the ''[[Family Law Act]]'', an agreement about the division of property and debt may be oral or written. | ||
There are requirements about the validity of agreements that are part of the common law of contracts. These are discussed in a little more detail further on in this section, but for a more thorough discussion you should look at the [[Family Law Agreements]] chapter. | |||
There are | |||
===Asking the court to set aside an agreement=== | ===Asking the court to set aside an agreement=== | ||
Section 94(2) says that the court cannot make an order dividing property or debt in the face of | Section 94(2) says that the court cannot make an order dividing property or debt in the face of a written and witnessed agreement on property and debt until it has set aside those parts of the agreement. As a result, if a spouse is unhappy with the terms of a separation agreement on property or debt, the spouse must first ask the court to set aside the agreement and second ask for an order about the division of property and debt. | ||
====Family law agreements and contract law==== | ====Family law agreements and contract law==== | ||
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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}} | ||
