New Family Law
In any event, it is important to keep an eye on family law developments, so this blog is intened only as the merest of an oversight of some of the changes to look for in family law, very soon.
I apologize for the loose format, but it is a composite of my own notes from a seminar on the topic.
It is complicated legislation that has taken years to develop, and may not in fact be quite yet finished in the details.
New act has the notion of ” family property” which is everything unless “excluded property”, with the notion of former “family purpose use” no longer being the test.
Property rights are extended to common law couples after 2 years
Family debt is defined and can be re- apportioned between the spouses- ie one spouse might be ordered to pay all or some of the other spouses debts
Spouse is defined as either – married, or common law for 2 years
But a party can get spousal and child support if they live together less than 2 years, if they have a child
“Family property” is defined
On date of separation what you own is family property unless it is excluded property
Same with property acquired after separation if acquired from a family property
Family property includes a share in a limited company
The property you bring into a marriage is excluded property, but the amount of any increase in value in the property, makes it family property
S85 sets out excluded property:
Gifts
Inheritances, but not their growth in value
Property owned before the relationship
Non property related insurance
Discretionary trusts
Property traceable back to excluded property
Excluded property increase in value is divided
If the property is outside BC, then the property can’t effectively be divided
Excluded property can be divided if it is significantly unfair not to divide it after consideration of the duration of the relationship and the direct contribution ( not indirect contribution any longer)
Can divide family debt and assets disproportionately, but now requires it to be significantly unfair
Valuation date is s 87 date agreement signed, or date of hearing
Date of separation can be important as it is the triggering event and what date is the actual date
Marriage agreements – can still opt out and court may set aside agreements for failure to disclose assets, debts, or other defect in the process
The other is significant unfairness due to length of time, intention of parties to achieve certainty, the degree to which the spouses relied upon the agreement
Make sure the other side gets good legal advice as there is a risk that the spouse can later argue they did not understand it
Court can order that spousal and child support can survive death and an order can be made against the estate for continued child support.
