Property Division After Divorce (Or Separation) + Before - Zukerman Law

A Guide to Property Division in British Columbia: Pre-separation Planning and Considerations After Divorce

Breaking up a marriage is a complex and emotionally charged experience. Beyond the emotional toll, navigating the legalities of the British Columbia (BC) property division can add a layer of confusion and stress. This comprehensive guide aims to empower you with knowledge and understanding throughout this process.
Whether you’re contemplating separation or already facing divorce, this guide delves into the key aspects of property division in BC. We’ll explore the concept of equitable distribution, the impact of pre-separation planning (including prenuptial agreements), and the important considerations that come into play after a divorce is finalized. By understanding your rights and options clearly, you can approach property division with greater clarity and confidence, paving the way for a more efficient and amicable resolution. This knowledge can save you time, money, and emotional stress.
Have you ever wondered what the time limit for the BC property division is? Curious about what happens to property owned before marriage in BC? Who do you think gets to stay in the house during separation in BC? Do you have to separate before divorce in BC? Let’s find out.

Dividing Property and Debts Fairly: Understanding BC's Family Law Act

Dividing Property and Debts Fairly: Understanding BC’s Family Law Act

The end of a relationship brings a wave of complex emotions, and figuring out how to fairly divide property and debts is a crucial step in moving forward. British Columbia’s Family Law Act provides a framework to navigate this process.
The Act operates on the principle of equal share of shared property. This means that assets acquired during the relationship, such as a house purchased together or furniture you accumulated as a couple, are generally subject to an even split. However, separate property – assets you brought into the relationship, such as an inheritance – is typically excluded from the division. There’s one important caveat: the increase in value of such separate assets during your relationship may be considered for division.
If an equal division doesn’t feel fair in your specific situation, you and your former partner have the option to create a written agreement outlining a different approach to property and debt division. This opt-out agreement allows you to tailor the distribution to reflect your unique circumstances better.

Important points to remember

  • These rules apply to both married couples and common-law partners who have cohabited for at least two years.
  • There is a time limit for filing for a court order regarding property division: two years after a divorce decree (married couples) or two years from separation (common-law couples).
  • Seeking legal guidance from a qualified lawyer before finalizing property and debt division agreements. A lawyer can protect your rights, and the process is handled smoothly.
Navigating Property Division During Separation: Family Property vs. Excluded Property

Navigating Property Division During Separation: Family Property vs. Excluded Property

The breakdown of a marriage or common-law partnership (considered a marriage-like relationship lasting at least two years under BC law) involves untangling emotional and financial ties. British Columbia’s Family Law Act outlines dividing property during separation.

Understanding Family Property

This category encompasses everything you or your spouse own, jointly or separately, on the separation date. It doesn’t matter whose name appears on the ownership documents. Family property includes:

  • The family home
  • Retirement savings (RRSPs)
  • Investments and bank accounts
  • Insurance policies
  • Pensions
  • Business interests
  • The increase in value of excluded property (explained below) since the relationship began.

Important Note: When spouses separate, all family property is generally divided equally unless a written agreement dictates otherwise, or an equal split would be deemed significantly unfair.

What happens to property owned before marriage BC?

There are certain assets considered separate from the marital pool:

  • Property owned by one spouse before the relationship began.
  • Gifts and inheritances received by one spouse during the relationship.
  • Specific types of damage awards, insurance payouts, and trust property.

However, there’s a twist. While the excluded property itself isn’t subject to division, the increase in its value during the relationship is considered family property and gets divided equally.
For example, imagine you owned a house worth $300,000 when your partner moved in. Over time, you made mortgage payments, renovated the house, and the market value increased. Now, at separation, the house is worth $500,000. You’d keep the original $300,000 value, and the additional $200,000 increase in equity would be split equally between you and your former partner.

Opting Out with an Agreement

Couples can create a written agreement outlining a different property and debt division approach that better reflects their unique situation.

Unequal Division: When Does It Happen?

A court will only order an unequal division of family property or debt if it deems an equal split “significantly unfair.” This means courts generally favor an even distribution. There are, however, factors they consider when deciding on an unequal division, and couples can also agree to it through a written agreement.

Who gets to stay in the house during separation, BC?

In British Columbia, separation doesn’t automatically force one spouse to leave the family home. The Family Law Act allows both spouses to continue residing there even while separated. However, situations may arise where one spouse feels unsafe or cannot share the living space with the other. An exclusive possession order can be obtained from the BC Supreme Court in such cases.
This order grants one spouse the legal right to live in the house and excludes the other. The court will only grant such an order if continued cohabitation is deemed intolerable (due to violence or threats) or if it’s demonstrably more practical for one spouse to remain (considering childcare or work needs). Ultimately, the court prioritizes a fair and useful solution for both parties.

Pre-separation Planning and Post-Divorce Considerations: Taking Control

Pre-separation Planning and Post-Divorce Considerations: Taking Control

While the emotional aspects of separation and divorce are undeniable, there are proactive steps you can take to manage the financial implications. Here’s a glimpse into pre-separation planning and post-divorce considerations:

Pre-separation Planning

  • Open Communication: Discussing financial goals and concerns with your partner, even during challenging times, can pave the way for a more amicable separation process.
  • Financial Inventory: Take stock of your marital assets and debts – property, investments, savings, loans – to understand your overall financial picture.
  • Gather Documentation: Organize important financial documents like bank statements, investment records, and property titles. Easy access to this information will be critical later.
  • Consider Legal Counsel: Consulting with a lawyer specializing in family law can provide valuable guidance on your rights and options regarding property division and other legal matters.

Post-Divorce Considerations

  • Reviewing Financial Agreements: Carefully review any separation agreements or divorce decrees to ensure a clear understanding of financial obligations and entitlements.
  • Updating Beneficiaries: Revisit beneficiary designations on insurance policies, retirement accounts, and wills to reflect your new marital status.
  • Financial Independence: Develop a budget tailored to your post-divorce income and expenses. Consider seeking financial planning advice to navigate this transition smoothly.

Bottom Line

A marriage or common-law partnership breakdown can be overwhelming, but navigating property division in BC doesn’t have to be. This guide equips you with the knowledge to confidently approach the process. Remember, time limits are involved. Working with a team of experts like Zukerman Law can help you navigate the complexities of sustainability and protect your rights during this challenging time.

author

Stuart Zukerman

Stuart Zukerman, a graduate of the University of British Columbia, has over 32 years of experience in litigation with a focus on Family Law, Personal Injury, Wrongful Dismissal claims, and Collaborative Divorce & Mediation. He has extensive trial experience in divorce, child custody, spousal support, asset division, and ICBC injury claims. As an accredited Family Law Mediator, he helps resolve disputes without court intervention. Stuart has also authored papers on family law and lectured at CLE courses.