Basics of Family Law
Division of Property: Who Gets What?
I am not married: what are my rights?
The law treats married couples and common-law couples (opposite or same-sex) the same way in many situations. However, there are some important differences when it comes to dividing property.
If you agree
If you and your spouse come to an agreement about how you want to divide your assets, then you can go ahead and divide your property without having to go to court. (The agreement will usually form part of a larger, written separation agreement that covers other issues as well, such as child custody.)
Please note:
You should know, however, that if you make an agreement about property, and you and your former spouse run into difficulty later on - your former spouse refuses to give you the car as agreed, for example - and you have to go to court for a decision, the judge will assess your agreement to see if it is fair or not, based on the Family Relations Act. (To find out more about what this means for you, we recommend you get legal advice.)
The Family Relations Act says that each married spouse has a right to half of the family assets, unless that would be unfair. Because you and your spouse are not married, this 50-50 rule does not automatically apply to you. It only applies to you if you and your spouse make an agreement that covers your family assets.
A family asset is anything owned by spouses together, or by either of them separately, and ordinarily used for a family purpose. The most common examples of family assets are the family home and its contents and the family car. Other family assets might include bank accounts or investments, such as term deposits, stocks and bonds, and RRSPs. Pensions earned by either spouse during their relationship are also family assets.
Personal items - such as jewellery - that were used by only one spouse during the relationship will not usually be included as family assets, nor will any property a spouse might buy after separation, unless the spouse uses a family asset, or money received from selling a family asset, to buy it.
A business owned by one spouse may be a family asset, if the other spouse contributed in some way - either directly or indirectly - to it. A direct contribution might be money or labour; an indirect contribution might be taking care of family and household duties so that the spouse can concentrate on the business.
If you and your spouse make an agreement about how to divide your property and later have to go to court to resolve a problem with carrying it out, the judge will look at the 50-50 rule, at your agreement, and at a variety of other factors, including how long your relationship lasted, how long you and your spouse have been separated, and whether any of the property came to either of you as an inheritance or gift.
If you do not agree
If you cannot come to an agreement about how to divide your property, then you will need to go to the Supreme Court to ask for a judgment. (The Provincial Court does not handle division of property.)
The 50-50 rule in the Family Relations Act will not apply, because you and your spouse do not have an agreement covering your property. The judge will look at who brought what into the relationship - the house or furniture, for example - as well as what you and your spouse bought together. The judge will also look at the contributions made by each of you during the relationship. These contributions may be financial (you paid half the mortgage, for example), or non-financial (your former spouse handled all the cooking and household chores).
In general, you will be able to keep what you brought into the relationship and whatever has your name on the bill of sale. What you bought together, and what you contributed to, may be either divided or shared.
To find out more about the Supreme Court process and applying for a court order, please see our web site section called If You Go to Supreme Court.
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