Q. Do I have to be married to apply for a division of property under the Family Law Act?
Yes. Persons who cohabit, but are not married spouses, are not entitled to apply to the Court for a division of property under the Family Law Act. The Family Law Act entitles a married spouse to apply to the Court for a division of the property acquired during cohabitation upon separation of the spouses or the death of the other spouse.
However, non-married spouses who have been cohabitating for a period of time, who may have a child(ren) together, and who have pooled their efforts for the betterment of the family, may have an equitable claim for an interest in their partner’s property or for monetary compensation for their contribution to their partner’s property during their cohabitation. The claim is one of unjust enrichment and a non-married spouse wishing to bring such a claim against their partner should consult a lawyer.
Q. What do we divide and how?
The parties divide the value of the property that they have acquired during their cohabitation under the marriage, not the property itself. What is created is a debt by one party to the other in a dollar amount. A court may, however, order that property be transferred from one spouse to another to satisfy the debt owing.
The payment from one spouse to another is known as an equalization payment, because it is the payment that equalizes the net worth of the spouses by having the spouse with the larger net worth pay to the spouse with the smaller net worth half the difference between them.
Q. When should I apply for a division of property?
There is a strict limitation period that applies to applications to the court for an equalization payment. A party claiming an equalization payment must do so on the earliest of the following dates: two (2) years from the date of divorce, six (6) years from the date of separation and six (6) months from the date of a spouse’s death.
DISCLAIMER: The foregoing material is not intended to and should not be taken or relied upon as legal advice by the author. It is general information provided by the author to the reader with a cautionary note to seek legal advice with respect to any questions or concerns the reader may have in respect of their own family law issues or the content of this material.