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FLA case law, property division and unmarried couples

When the Family Law Act (FLA) was announced at the end of 2012, many people pointed out a quirk in the law that would effect unmarried couples who split up between March 18, 2011 and March 18, 2013. As a general rule, laws do not affect events from before they came into force. However, the way the FLA was written means that it applied to unmarried couples who split up as far back as March 11, 2011.

Up until now, it has been unclear whether the court system would interpret the act this way. A recent ruling, Meservy v. Field, has confirmed that this is indeed how the law will work.

The old Family Relations Act did not consider unmarried couples to be spouses under any circumstances, and so did not allow them to follow those rules for dividing property. Instead, they would have to start a Supreme Court case under the existing rules about unjust enrichment to try and divide property when they split up.

The FLA considers unmarried couples to be spouses as long as they have been living in a “marriage-like” relationship for at least two years. It also gives couples two years from the date they split up to start an application with the court to divide property. This means that unmarried couples who split up before the FLA came into force (on March 18, 2013) could file for the division of property using the FLA rules as long as they:

  • split up after March 18, 2011, and
  • it hasn’t been more than two years since the split.

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