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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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#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 reason for this factor is that the ''Divorce Act'' requires a spouse to have lived in the province where | #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 they make 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 can refuse to make orders for the division of property and debt. Section 106(5) says what the court must take into <span class="noglossary">account</span> 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 can refuse to make orders for the division of property and debt. Section 106(5) says what the court must take into <span class="noglossary">account</span> in deciding to refuse to make orders: | ||
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A couple of important points about this section deserve mention: | A couple of important points about this section deserve mention: | ||
*the order ''must'' be made when a spouse asks for it, unless the other spouse can show that there are sufficient assets so that the claim to the property won't be frustrated if | *the order ''must'' be made when a spouse asks for it, unless the other spouse can show that there are sufficient assets so that the claim to the property won't be frustrated if they happen to sell some of the assets, | ||
*the order can be made without giving the other spouse notice of the application, and | *the order can be made without giving the other spouse notice of the application, and | ||
*the order includes not just "family property" but all property in dispute, including property that might be excluded property. | *the order includes not just "family property" but all property in dispute, including property that might be excluded property. | ||
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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 | 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 they 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> | ||
