Unequal Division of Family Property

The end of a relationship signifies a new beginning and a new way of life for both parties. While a separation can mean new opportunities, the process is not always easy, particularly when it comes down to division of family property. Generally, the growth in equity (from the date of cohabitation until the division date) in all family assets and debts are divided equally except in cases where the results of equal division become significantly unfair.

The BC Family Law Act does set forth guidelines for how and when to divide family property in both legal marriages or common-law or marriage-like relationships. These guidelines can help to shed light on the rights and responsibilities of each spouse, but it is important to fully understand the types of assets and debts that can be divided following a separation.

Understanding Unequal Division of Property

In a high-tension scenario like a divorce or separation, it can be difficult to maintain a clear view of what is fair and equal. Over the course of a relationship, property is acquired, assets and portfolios are built, and debts are collected. While the growth in equity created during the relationship, will be considered shared or family property, there are circumstances and arguments that can be made against a 50/50 division.

If the court finds that an equal division of family property or family debt would be significantly unfair toward one spouse, it is possible to order an unequal division of property. These orders are based on a number of factors:

Duration of the Relationship:  Generally, the longer the relationship, the more difficult it will be for the court to move away from an equal division of the equity that grew during the relationship.

Purchases Made Before or During a Marriage: Many couples choose to purchase homes together, or move into a home already owned by one of them, to accommodate a growing family. The growth in equity that occurs from the date of cohabitation to the date of separation (and often to the date the asset is sold or the buy out of one spouse’s interest occurs), in a home or other high-ticket item, whether purchased before or during a relationship, will be divided equally in most cases regardless of either spouses financial contribution to such assets.

Debts Incurred During Marriage: Any family debts that are accumulated in normal fashion throughout the course of a relationship will often be divided equally between two spouses. In particular cases, a court may order a division other than 50/50 in accordance with one spouse’s ability to repay any remaining debt.

Individual Contributions: There is more than one way to add to a household or partnership. Each spouse’s contribution, whether it be financial or in time and effort, to the acquisition, preservation, improvement or maintenance of an asset may be a consideration in determining whether an equal division of assets or debts may be unfair, and these contributions can be highly relevant to the issue of spousal support – such as those contributions that went toward the furthering of a partner’s career or earning potential (i.e. being a hands-on parent can help to allow space for a partner to focus on career or educational goals).

Excluded Property: Any equity in assets that belonged to a spouse before the outset of a relationship, is generally excluded from the division of assets.  Such pre-relationship equity is not divided following a separation, along with other specific assets, such as inheritances, personal gifts, or pain and suffering settlements or awards from courts, that are received during the relationship and maintained in the name of the spouse who received them.

Actions Done in Ill-Will: The growth in equity of assets and the growth in debts during the relationship are counted as shared up until the date of separation or until the date each spouse receives their share of the assets. Any actions taken after this separation that might have a negative impact can contribute to an unequal division. If the actions of one spouse have reduced the value of a property or asset, or has given away or sold an asset, or created excess debt that was not incurred for a family purpose can be seen as malicious and can impact the division of property.

In order to properly understand and navigate unequal division of family property in B.C., it is important to consult a Family Law lawyer. Highly trained and knowledgeable lawyers can help to organize and manage a divorce procedure from the outset to the final resolution. In British Columbia, the team at Zukerman Law is able to help advocate for fair and equitable division of assets, spousal support orders, and able to help navigate issues of parenting time and financial support.