22/11/2019 0 Comments
Why Does the Date of Separation Matter in BC Family Law?
Whether you were legally married or in a common-law relationship, the date of separation is extremely important to the determination of a number of BC family law matters, including child support, spousal support, and the division of property and debt.
The date of separation also impacts the time limits for making a claim to divide property and debt but does so in different ways depending on whether or not you were married. If you were in a common-law relationship, you must bring an application for division of family property and debt within two years of the date of separation. If, on the other hand, you were married, you must bring an application to divide family debt and property no later than two years after you get a divorce order or annulment. The date of separation impacts the running of the time limit for property division as in most cases, legally married spouses have to wait one full year from the date of separation before a divorce order can be granted.
What is the date of separation?
The date of separation is the date on which your marriage or common-law relationship broke down. As our team of experienced family lawyers have discussed, there is no such thing as “filing for separation” in BC. You do not need to see a lawyer or file legal documents to be separated. Instead, the law in BC is that you are separated as soon as you and your partner start living separate and apart, and at least one of you wants to end the relationship (which means that you do not need your partner’s permission to separate, but you do need to communicate your decision to your partner). You can live "separate and apart" from one another under the same roof or in separate homes. As such, the date of separation is not necessarily the date you or your partner physically moves out.
What if we do not agree on the date of separation?
In many cases, there is no dispute as to when separation occurred. In other cases, the date of separation is disputed (for example, if the partners have periods of reconciliation, or in some cases where the partners continue to live under the same roof). A dispute over the date of separation may also be financially motivated (for example, one partner may argue for a different date of separation to increase his or her share of family property or to avoid responsibility for family debt). Where the date of separation is disputed, it will be necessary to look at evidence to determine intention: Did one or both of the partners have the intention to separate? Was that intention communicated to the other partner? Were steps taken to act upon that intention? Analysis of the issue of intention to separate is highly fact specific. Evidence of the pre-and post-separation behaviour of the partners will be examined, such as whether the partners continued to share finances, have sexual relations, and/or carry on activities in public as a couple.
How does the date of separation impact property division in BC?
When a relationship breaks down, property must be divided. Division of property is often very contentious, with each party seeking to secure his or her individual financial priorities. BC property division rules apply to both married spouses and unmarried partners who have been living together in a marriage-like relationship for at least two years. BC law divides property into two categories: (1) family property, and (2) excluded property. Family property is everything that the spouses owned separately or together on the date they separated, regardless of whose name the family property is in, including the family home, bank accounts, pension, investments, RRSPs, and insurance policies. Family property is shared equally, such that on the date of separation each spouse becomes entitled to a half-interest in all family property (unless the spouses have a prenuptial agreement, marriage contract, or other agreement that states otherwise). The date of separation is also important with respect to excluded property, which can include property one spouse owned before the relationship started, gifts or inheritances given to one spouse during the relationship, and certain types of damage awards, insurance proceeds, or trust property. BC family law provides that the amount of any increase in the value of excluded property since the relationship started must be divided equally as of the date of separation. Property acquired by either spouse after the date of separation is their own separate property (in other words, not family property and not subject to equal division).
Is the date of separation also important with respect to family debt?
Family debts are treated in the same manner as family property. A family debt is any debt incurred by a spouse during their relationship up to the date of separation, whether or not the debt is in one spouse’s name or jointly incurred. This can include mortgages, lines of credit, loans, credit cards, and overdrafts. The date of separation is highly important, as each spouse is responsible for one-half of the family debts as of that date (unless you make a different agreement). Any debt incurred by one spouse after the date of separation is that spouse's sole responsibility (unless the debt is undertaken by a spouse post-separation for the purpose of maintaining family property).
Get legal advice from an experienced BC family lawyer
The process of separation and divorce can be extremely difficult. Having an experienced BC family lawyer to guide you will make the process less stressful and ensure that your legal rights are protected. If you are going through a separation or divorce, our compassionate family lawyers will listen to your case, explain the legal complexities of your situation, and counsel you to make decisions to facilitate a better future. Call Bronson Jones & Company LLP’s today (toll-free) at 1-855-852-5100 to schedule your free initial consultation with one of our team of experienced BC separation and divorce lawyers.