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Property division in limbo: Unmarried couples, property division, and the new Family Law Act

Last November, the Family Law Act (FLA) was announced. The act was introduced to replace the current Family Relations Act, which sets out the family law process in BC. Though it was announced in November, it won’t come into effect until March 2013. This delay has caused some confusion as to which set of laws applies. Most confusing are the rules about common-law couples dividing property after they split up.

The first point to address is that the new act only sets out how to divide property between separating spouses. A spouse is defined in the new act as someone who is married to another person, or who has lived with another person in a marriage-like relationship for at least two years, and includes former spouses (married spouses who have divorced or had their marriages annulled and unmarried spouses who have separated). This ELAN entry is only about the rules that apply to unmarried spouses.

The important date to remember is March 18, 2011. The Family Law Act sections about division of property say that you have two years from the date of separation to start an application. Since the act goes into force on March 18, 2013, this means that couples who split less than two years before the act takes effect can take advantage of the new rules.

So what happens once the new act takes effect?

If you split before March 18, 2011 but haven’t yet applied to divide property, then you aren’t a spouse under the FLA or the Family Relations Act. You can start a Supreme Court case under the existing rules about unjust enrichment to try and divide property.

If you split on or after March 18, 2011 but haven’t yet applied to divide property, then you will be considered a spouse after March 18, 2013. You can start a case now under the existing rules, but you will have to change it to follow the rules set out in our ELAN entry about dividing property after March 18, 2013.

If you split before March 18, 2011 and have already applied to divide property, then your case will continue under the existing rules.

If you split on or after March 18, 2011 and have already applied to divide property, then you have until March 18, 2013 to resolve your case. (If you own property, it makes sense to solve your case quickly. If you’re applying for a share of property your spouse owns, you might want to wait until the new FLA comes into effect.) Once the FLA comes into effect, you can change your claim to ask for orders about property under the new act.

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