Whether you are currently living in a common law relationship or are married, if you are thinking about ending your relationship, the current state of the law invites you to put your mind to the timing of your exit.
While this post may seem iterative of the
earlier post titled Property Now, Property
Later, as the induction of the new Family Law
Act nears, men or women thinking about leaving their significant
other are pressed to take a critical look at how the timing of their exit may
affect their property rights down the road.
If you are in the difficult position of deciding to end your marriage,
and you share or have assets that either existed prior to your marriage or have
been inherited since, leaving now rather than waiting until March of 2013 may
have a significant impact on the eventual division of assets.
On March 18, 2013, British Columbia’s new Family Law Act comes into force, and any new litigation
commenced at that time will be decided in accordance with its terms. Currently,
division of assets is handled by the Family Relations Act
and only applies to married couples. There is a presumption of an equal
division of family assets under the current law, and the onus lies on the party
seeking a greater piece of the pie to demonstrate that it would be unfair for
the Court to do otherwise.
Currently, common law couples have no
presumptive right to the assets of the other party, and the party seeking any
of the assets of the other bears the onus to prove that they have made a
contribution that justifies their claim to part of those assets.
Under the new Family Law
Act, couples who are either married or common law, will share
equally in the growth that accrued in the value of any assets during the
marriage, but the initial value that a party brought into the marriage can be
taken back out by that party. Further, if you inherited assets while married,
you can also take those assets out of the marriage, minus half of any growth in
the value.
As the new law is just around the corner and
provides for significant changes to how assets are divided, people thinking
about leaving would be wise to see a lawyer to discuss their situation and
whether a separation prior to the new law coming into place will attract a
significantly different result than if you hunker down and wait it out.
