The end of a marriage or a long-term relationship can be a difficult time for all individuals involved. Eventually, the parties must deal with dividing the assets they own, whether held jointly or in their individual names. The Family Law Act states that family property will be divided equally, unless the parties have a written agreement stating otherwise. However, this is not always the case. Family property may be divided unequally if it is “significantly unfair” to divide it equally between the parties.
The courts will not easily grant an order for unequal division of family property, and the test to obtain such an award is strict. However, under the right circumstances, a party may be successful. The court will consider a number of factors, such as:
- how long the parties were in a relationship or were married;
- whether the parties made any agreements;
- how much each party contributed to the other’s career;
- how much debt the parties incurred during their relationship or marriage;
- any misconduct by one of the parties to substantially reduce the value of family property after separation.
Recent cases provide lawyers with some guidance in advising their clients regarding unequal division of family property:
- In Nanara v Nanara, 2017 BCSC 1447, the Claimant was successful in receiving 60% of the family property. Justice Abrioux concluded it would be significantly unfair to divide the family property equally because the Claimant made significant financial and non-financial contributions to the family property during and after the relationship, and was solely responsible for all family expenses. Also, the Respondent lack of disclosure of the value of his pensions and other assets was a relevant factor.
- In H.H. v C.L.M., 2017 BCSC 1299, the Respondent was successful in her claim for unequal division of the increase in the value of the property she owned. Madam Justice Young based her decision on factors including the significant difference in the parties’ financial contribution to the household, the Claimant’s unequal contribution to the renovation and restoration of the property, and the misconduct of the Claimant, including the taking of unauthorized loans and the hiding of income.
- In Bamford v Mulyati, 2017 BCSC 945, Madam Justice Morellato apportioned 80% of the parties’ family property to the Claimant and 20% to the Respondent. Factors considered included the length of the parties’ relationship; the Respondent’s lack of financial contribution to, and maintenance, of the family property during the marriage and after separation; the Claimant was in his 80s and retired for 20 years; the Respondent fled to Jakarta, did not disclose her income or value of her assets; and the Respondent failed to respond to the court proceedings.
Property division is complex, often involves assets that are substantial in value, and is decided on a case-by-case basis. It is important for recently separated individuals to obtain legal advice before making any decisions to divide family property to ensure there is a fair division of family property.
If you have questions about family property and asset division, contact Cohen Buchan Edwards LLP at 604.273.6411 and speak with one of our family lawyers.