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Difference between revisions of "Property and Debt in Family Law Matters"
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Property and Debt in Family Law Matters (view source)
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====Living together and marrying==== | ====Living together and marrying==== | ||
Under | Under section 3(3) of the ''[[Family Law Act]]'', a relationship between spouses begins | ||
<blockquote><tt>... on the earlier of the following:</tt></blockquote> | <blockquote><tt>... on the earlier of the following:</tt></blockquote> | ||
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<blockquote><blockquote><tt>(b) the date of their marriage.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) the date of their marriage.</tt></blockquote></blockquote> | ||
Since the definition of ''spouse'' at | Since the definition of ''spouse'' at section 3(1)(b)(i) includes people who have lived together "for a continuous period of at least 2 years," once you have reached the two-year mark: | ||
*you and your partner are spouses, and | *you and your partner are spouses, and | ||
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===Property brought into the relationship=== | ===Property brought into the relationship=== | ||
Under | Under section 85(1)(a), property that was brought into a relationship is excluded from the pool of family property that is supposed to be divided equally between spouses. Under section 96, the court "must not" order a division of excluded property, except in limited circumstances. A spouse is therefore normally entitled to keep the excluded property they owned when the relationship began. Under section 85(2), however, it is up to the person who's saying that property is excluded property to prove that the property is excluded property. | ||
For most couples, property brought into a relationship will form the largest component of a spouse's excluded property. However, when most people marry or move in together, counting up their assets is not the foremost thing on their mind. This means that you may wind up having to do some historical accounting to figure out what you each owned years ago. Whether you're just starting a relationship or are trying to figure out what you once had, these are the documents you need to look for: | For most couples, property brought into a relationship will form the largest component of a spouse's excluded property. However, when most people marry or move in together, counting up their assets is not the foremost thing on their mind. This means that you may wind up having to do some historical accounting to figure out what you each owned years ago. Whether you're just starting a relationship or are trying to figure out what you once had, these are the documents you need to look for: | ||
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====Family property==== | ====Family property==== | ||
Under | Under section 84(1) of the ''[[Family Law Act]]'', family property is the property owned by one or both spouses on the date of their separation, including any property bought after separation with family property. Section 84(2) gives some examples of specific assets that are family property, including: | ||
*interests in companies, businesses, partnerships, and ventures, | *interests in companies, businesses, partnerships, and ventures, | ||
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Family property also includes the amount that any excluded property grows in value after the date the spouses' relationship began or after the excluded property was acquired, whichever is later. | Family property also includes the amount that any excluded property grows in value after the date the spouses' relationship began or after the excluded property was acquired, whichever is later. | ||
Under | Under section 81, family property is presumed to be shared between the spouses equally, regardless of their use or contribution to that property. | ||
For information on how to share CPP credits see [[How Do I Divide Our CPP Pensions after We're Divorced?]]. It's located in the ''How Do I?'' part of this resource in the ''Miscellaneous'' section. | For information on how to share CPP credits see [[How Do I Divide Our CPP Pensions after We're Divorced?]]. It's located in the ''How Do I?'' part of this resource in the ''Miscellaneous'' section. | ||
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====Excluded property==== | ====Excluded property==== | ||
The sort of excluded property that can be acquired during a relationship is described in | The sort of excluded property that can be acquired during a relationship is described in section 85(1), and includes: | ||
*gifts from a third party (provided that the gift is a gift to the spouse and not to the couple), | *gifts from a third party (provided that the gift is a gift to the spouse and not to the couple), | ||
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*property held in trust, providing that the spouse didn't put the property into the trust. | *property held in trust, providing that the spouse didn't put the property into the trust. | ||
Excluded property that is acquired during a relationship is presumed to remain the property of the spouse who owns it. However, under | Excluded property that is acquired during a relationship is presumed to remain the property of the spouse who owns it. However, under section 85(2), it is up to the person who's saying that property is excluded property to prove that the property is excluded property. | ||
====Family debt==== | ====Family debt==== | ||
Under | Under section 86, family debt is all debt incurred by either or both spouses during their relationship up to the date of their separation, but can include debt incurred after separation if the debt was incurred to maintain family property, like a loan taken out to pay the property taxes. | ||
This definition means that debt incurred by a spouse before the spouses married or began to live together is that spouse's personal debt; it's only the new debt that they share. Under | This definition means that debt incurred by a spouse before the spouses married or began to live together is that spouse's personal debt; it's only the new debt that they share. Under section 81, responsibility for family debt is presumed to be shared between the spouses equally, regardless of their use or contribution to that debt. | ||
===Dividing property and debt: an example=== | ===Dividing property and debt: an example=== | ||
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==Property claims and people who aren't spouses== | ==Property claims and people who aren't spouses== | ||
People who are not spouses within the ''[[Family Law Act]]'' definition at | People who are not spouses within the ''[[Family Law Act]]'' definition at section 3, described above, cannot make a claim for the division of property or debt through that act. When people who aren't spouses own an asset jointly, like a house or a car, they are presumed to each be entitled to half of the value of that property. Where a person claims a share of property owned only by the other person, they will have to prove an entitlement to that asset through the principles of the common law. | ||
===Jointly-owned assets=== | ===Jointly-owned assets=== | ||
