How is Property Divided when Spouses Separate or Divorce?
One of the most frequently asked questions when a couple break-up is “Who gets what?”. Whether you are married or in a common-law relationship, separating a life you’ve built together can be very stressful. The general rule is that family property will be split equally between spouses (property division) upon separation irrespective of their use or contribution it. Spouses also carry equal responsibility in paying off family debts, and this often adds extra tension.
A separation agreement gives separating couples the opportunity to negotiate splitting their assets and debts on their own terms.
But if it is unlikely that the couple will reach an understanding together, a spouse can apply to the Supreme Court of British Columbia (the “Court”) to decide how entitlement and responsibility is to be allocated.
Family Property vs Excluded Property
Family Property
Property that is considered “family property” includes real spouse that has a property and personal property that is owned by at least one spouse. A beneficial interest in property as of the date the spouses separate is also counted towards family property for child support.
Family property includes, but is not limited to, interests in businesses, monies, shares, trusts, or any entitlements under a pension plan or retirement savings plan.
Excluded Property
Under certain criteria, some property may be excluded from the list of family property. This exclusion is not automatic and must be established by the spouse seeking to exclude it.
Exclusions can be made in cases where one spouse obtained property such as an apartment, prior to the relationship. Additionally, inheritances, gifts, and money paid under an insurance policy are a few examples of what is not considered family property under the Family Law Act.
What a spouse may or may not be entitled to varies depending on the nature of the relationship, agreements in place, any exclusions and any other factors that may alter a spouse’s entitlements.
Family Debt
Debt that is incurred by either partner during the course of the relationship imposes a financial commitment on both spouses. This commitment can also extend past the date of separation, if debt is accumulated in relation to any family property.
Debt can be dealt with in a separation agreement where the parties agree on how to pay off the debt post separation. If the parties cannot agree, an application to Court can be made by one of the parties.
Other Factors
Sometimes marriage agreements can produce a result substantially different from what either party contemplated when they made the agreement years before. If that is the case, it is possible to set that agreement or provision aside. This requires the involvement of an experienced family lawyer.
Some other factors can also lead to agreements being set aside. An agreement will typically be set aside if a spouse did not provide full financial disclosure. In addition, if a spouse did not understand the consequences of signing the agreement or was taken advantage of, the court may also order the agreement set aside.
Conclusion
Dividing property is not always straightforward and each family has its own set of unique circumstances that may alter the outcome for each party.
If you require a consult or legal representation during your separation or divorce, call our Vancouver office at 604-629-5400 and our family lawyer Anna Okorokov would be happy to assist.
***Disclaimer
These rules apply to both married couples and unmarried couples as defined under the Family Law Act (BC) (the “Act”). To determine if you and your partner are “spouses” under the Act, you can learn more here.
The above blog post is provided for informational purposes only and has not been tailored to your specific circumstances. This blog post does not constitute legal advice or other professional advice and may not be relied upon as such.
Links
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_05#part5
