Family Property
Under BC’s Family Law Act (FLA), the starting point is simple. On separation, each spouse is entitled to an undivided half interest in all family property and is equally responsible for family debt, regardless of whose name is on title or who earned the money. “Spouse” includes married couples and people who lived together in a marriage-like relationship for at least two years.
What counts as family property
Family property is essentially everything either spouse owns on the date of separation, including:
- the home
- bank accounts
- cash
- stock market investments
- RRSPs
- pensions
- business interests
- vehicles
- and so on
It also includes the growth in value of excluded property during the relationship. Family debt is debt incurred by either spouse during the relationship, plus debt incurred after separation to maintain family property.
Exceptions to equal division (s. 95)
A court can order an unequal split of family property or debt if equal division would be “significantly unfair.” The factors it considers include:
- a short relationship
- a long gap between separation and resolution
- one spouse’s contribution to the other’s career or earning potential
- debts incurred without the other’s knowledge or benefit
- one spouse having wasted, hidden, or depleted assets
- tax consequences
- other factors, such as a spousal support arrangement that already compensates
Under s. 96, a court can also reach into excluded property, but only in narrow cases. One is where family property is outside BC or can’t practically be divided. The other is where it would be significantly unfair not to, such as where the other spouse contributed substantially to the excluded asset.
Other points worth knowing
- Pensions are divided under Part 6 of the FLA. Only the portion earned during the relationship is split, usually at source through the plan administrator.
- Limitation period: married spouses have 2 years from the divorce order to make a property claim. Unmarried spouses have 2 years from separation.
- Spouses can agree to a different division. However, a court can set aside a written agreement that was significantly unfair or made without proper financial disclosure.
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