When you separate from your spouse, you have the right to claim half of all family property. But you can lose the right to make a property claim if you wait too long after separation. Let’s have a look at the important time limits that apply to making property division claims.
Property division laws apply to married spouses and common-law spouses
British Columbia’s Family Law Act governs how property is divided when spouses separate. The law focuses on ensuring that spouses leave the marriage or relationship on relatively equal footing.
The meaning of "spouse" is set out in section 3 of the Family Law Act. You qualify as a spouse in BC if you:
are legally married to another person; or
you have lived with another person in a marriage-like relationship for a continuous period of at least 2 years, even if you are not legally married; or
you have lived with another person in a marriage-like relationship of less than 2 years duration, but you have a child with that person (but this is only for the purposes of claiming spousal support, not for property division claims).
Thus, both legally married and common law spouses are covered and have the right to claim for property division should their relationship break down.
Time limits are different for married and common-law spouses
While both married and common-law spouses have the same right to bring claims for division of property and debt, the time limits that apply are not the same. Section 198 of the Family Law Act sets out the following limitation periods for starting a property division claim:
If you are legally married, legal proceedings to divide assets must be started within two years of getting an order for divorce or an annulment.
If you were in a common-law relationship, legal proceedings to divide property or debt must be initiated within two years of the date of separation.
A property division claim made after the expiration of the limitation period is “statute barred” – that means the legal right to make the claim is lost. If you file a Notice of Family Claim after the time limit has expired, you can expect your spouse to argue that your claim is statute barred pursuant to section 198(2) of the Family Law Act and should not be allowed to proceed.
The date of separation is extremely important
The date of separation is what starts the clock running for claims by common-law spouses, but the date of separation is also important to all property division claims for another reason. The separation date is used to determine what counts as family property and what must be included as family debt for both married and common-law spouses.
Sometimes spouses disagree on the date of separation. That may be because there wasn’t a “clean break”, or it may be because spouses continued to live under the same roof. It may also be disputed because one spouse is trying to get a financial advantage by alleging that the date of separation is earlier or later to increase their share of family property or decrease their share of family debt.
There is no such thing as filing for legal separation in British Columbia. Instead, the question of when spouses separated depends on factors such as communication of the intent to separate by at least one spouse to the other, and whether their behaviour is consistent with that intention to separate (e.g., sleeping arrangements, sexual relations, sharing of finances, and how the spouses present themselves to the public).
What is at stake in a property division claim?
Family property is everything you or your spouse owned separately or together on the date you separate. All family property will be divided 50/50, unless you have an agreement that states otherwise or the court orders otherwise. Examples of family property include the family residence, vehicles, RRSPs, investments, bank accounts, insurance policies, pensions, and business interests. Property that is registered in the name of only one spouse may still qualify as family property and may still be equally divided.
Family debt must also be divided when spouses separate. That includes all financial obligations acquired by either spouse during the relationship, including mortgages, loans, lines of credit, credit card debt and income tax. Both spouses are typically equally responsible for paying off family debt even if the debt is only in the name of one spouse.
Get Trusted Advice from an Experienced Family Lawyer
Dealing with property issues after separation can be stressful. Fortunately, the team at Valerie M. Little Law Corporation can make the process easier by providing invaluable information, legal advice, and support to assist you. Our British Columbia divorce attorney has helped countless married and common law spouses with property division and related legal issues following the termination of their relationship.
Valerie M. Little Law Corporation is a family law firm that is centrally located in New Westminster and serves the surrounding areas of Burnaby, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Port Moody, Richmond, Surrey, Cloverdale, Delta, and Langley.. To schedule your confidential appointment, call 604-526-3333 or email us.
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