Q – When I break up with my spouse, does s/he automatically get half my stuff?
Q – But my spouse cheated on me, does that mean s/he should get less than half?
Q – If my spouse gets half the assets, does s/he get half the debt, too?
Q – Who gets to keep the house?
Q – Who gets to live in the house until the divorce is finalized?
Q – Can I just lock my spouse out of the house if I don’t want him/her to live there anymore?
Q – My ex bought an expensive car after we separated. Am I entitled to half of that?
Q – Does my ex get half my pension?
Q – Who gets the dog in a divorce?
Q – When I break up with my spouse, does s/he automatically get half my stuff?
A – Under the Family Relations Act, a legally married spouse is entitled to an undivided half interest, as a starting point, in each of the “family assets” upon a “triggering event”. The four possible triggering events are as follows:
- A separation agreement;
- A declaratory judgment under s.57 of the Family Relations Act that there is no reasonable prospect of the couple reconciling;
- An order for dissolution of marriage or judicial separation; and
- An order declaring the marriage null and void.
However, only family assets are divisible. If something is not a family asset, it is not subject to division.
Q – Is it always half?
A – No. There is a presumption that it is half. But the court has authority to reapportion the assets in unequal shares, if equal division would be unfair. The factors that could render an equal division unfair are:
- Duration of marriage;
- Duration of separation;
- The date the property was acquired;
- Whether the property was inherited or gifted;
- The needs of each spouse to become or remain economically independent; and
- Any other circumstances relating to the acquisition.
Q – What are family assets?
A – A family asset is something owned by either or both spouses and ordinarily used by a spouse or minor child for a family purpose. The family home and family car are obviously family assets. But there are some items that could prove to be tricky in terms of classification. The onus is on the party claiming something is not a family asset to establish that fact.
Q – But my spouse cheated on me, does that mean s/he should get less than half?
A – No. The conduct (or misconduct) of the spouse is irrelevant when determining whether equal division is fair or not.
Q – If my spouse gets half the assets, does s/he get half the debt, too?
A – While there is no specific section under the Family Relations Act that deals with “family debt”, the courts have considered the existence of debt in determining whether reapportionment is appropriate. So, in a round about way, the debt is shared among the spouses.
Q – I am not married to my spouse. We only live as “common law”. Does s/he still get half my stuff when we break up?
A – Currently in BC, there is no legislation that says a “common law spouse” is entitled to half of the family assets when there is a breakup. However, there may be remedies available (under the law of trusts or “unjust enrichment”) in the right cases. As one over-simplistic example, if both both common law spouses contributed to the purchase of the family car, but it is only registered in one person’s name, the other may have a claim for a portion of the car upon breakup. This is a complex and evolving area of family law and it is best to consult a lawyer for your particular case.
Q – Who gets to keep the house?
A – Upon a “triggering event” (see above), each spouse is entitled to an undivided half interest in the family asset as tenants in common. This includes the family home. Spouses can then negotiate with each other to buy each other out. They can sell the house and share the proceeds. They can also agree that one spouse keeps the house in consideration for the other spouse keeping other family assets.
Q – Who gets to live in the house until the divorce is finalized?
A – There is no presumption as to which spouse gets to live in the house until the divorce is finalized. If one party wishes the other to leave (and assuming this cannot be done by agreement), that party can apply to the court for “exclusive occupation”. The applicant must establish that it is practically impossible to share the use of the home. Once this threshold has been met, the court will then consider which spouse should get exclusive occupancy, on a balance of convenience. One important factor will be the alternative living arrangement each spouse has available.
Q – Can I just lock my spouse out of the house if I don’t want him/her to live there anymore?
A – No. Subject to the existence of a court order or an agreement, one cannot simply change the locks and lock a spouse out of the house. If there are safety concerns, however, the police should be contacted and a restraining order considered.
Q – My ex bought an expensive car after we separated. Am I entitled to half of that?
A- Generally speaking, property acquired after separation is not considered a “family asset” because it is not characterized to have a “family purpose”. However, if the car were purchased with family assets or proceeds of family assets (e.g., savings in a family bank account), then the car can qualify as a “family asset” and therefore subject to division.
On the other hand, if the car was purchased after a triggering event, then the car will not be a family asset even if it were purchased with a family asset. In that case, one spouse can ask the court for a “compensation order” to remedy the unfairness of one spouse using family money to buy something that only s/he is using.
Q – Does my ex get half my pension?
A – Like any property that would be classified as a family asset, pensions are subject to division. The presumption is that of a 50-50 split, but it can be reapportioned if the circumstances warrant.
Q – How is the pension split?
A – There are a number of ways to structure the splitting of a pension. One spouse can simply make a lump sum payment for the other spouse’s interest. One can take a global approach to property settlement. For example, one spouse would keep the entirety of the pension, while the other spouse keeps the matrimonial home. Alternatively, spouses can split the pension when the benefits are actually paid, or they can split the account at the time they are settling the issue. There are numerous different types of pensions, and how they can be divided will depend on the nature of the plan. It is best to consult your family lawyer in BC for the specifics of the plan that applies in your case.
Q – Who gets the dog in a divorce?
A – Unlike with children, there is no consideration for “the best interests of the dog”. Family pets, like other matrimonial property, will have to be divided either by agreement or by court order.