How you should divide your property when you separate is largely dependent on whether you are married.
If You Are Married
If you are married, then the Family Law Act requires you to calculate who owes whom how much money in terms of property division. The assets and debts that you and your spouse accumulated throughout the marriage are included in the calculation. Any assets and debts held on the Date of Marriage are deducted from the calculation. Some assets are excluded from the calculation, such as gifts from third parties, inheritances, and any monies received as a result of any personal injury claims. Special rules apply to the Matrimonial Home.
How To Calculate Your Spouse's Net Family Property
Basically, the calculation is as follows:
Once your and your spouse’s Net Family Property is determined, the larger Net Family Property is deducted from the smaller, and half of the difference between the two figures is paid to whoever has the lower Net Family Property. This payment is called an Equalization Payment.
If You Are In A Common Law Relationship
Equalization only applies to married couples.
If you and your spouse/partner did not marry each other, then you may not have any rights to each other’s assets. In other words, if you lived as a common-law couple, then you may be able to keep all assets in your own name, and you may be responsible to pay all debts that are in your own name. You may only have to split joint assets and debts with your common-law spouse. However, depending on the details of your relationship, you and your partner may be able to seek an interest in each other’s property. This may include proving how you helped your spouse obtain his/her assets. This may also include proving that you and your spouse embarked on a Joint Family Venture. The legal and factual analysis of a Joint Family Venture is not an easy one. Great care must be given towards either pursuing or defending against such claims. You should speak to a lawyer experienced in family law to better understand your rights and obligations so that you can make informed decisions about your family law matter.
What Is A Joint Family Venture?
A Joint Family Venture is a legal term that essentially means that you and your spouse acted like you were married even though you were not married. Determining whether you embarked on a Joint Family Venture involves looking at many aspects of your relationship, such as:
(a) Mutual Effort
Mutual Effort means determining whether you and your spouse worked together toward a common goal. Facts relevant to Mutual Effort include whether you raised children together, whether one of you took on most of the domestic roles to allow the other to pursue his/her career, and how long your relationship lasted.
(b) Economic Integration
Economic Integration means determining how intertwined you and your spouse's finances are. Facts relevant to Economic Integration include whether you and your spouse had joint bank accounts, shared expenses, and/or saved together.
(c) Actual Intent
Actual Intent means determining what you and your spouse meant your relationship to be. Facts relevant to Actual Intent include whether you intended to share your respective assets with each other, whether you held yourselves out to be married, whether you owned property together, whether either of you provided for each other in your wills, and how long you were in a relationship together.
(d) Priority of the Family
Priority of the Family means putting the needs of your family before your own needs. Facts relevant to Priority of the Family include determining whether you relied on the relationship to your detriment, whether you assumed or relied upon a shared future with your spouse, whether you made financial sacrifices for the family, whether you left the work force (or worked part-time) to raise children, and whether either of you relocated for the other's career.
This list is non-exhaustive, which means there may be many other factors relevant to determining whether you embarked on a Joint Family Venture.
If you can prove that you embarked on a Joint Family Venture, then you and your spouse may be required to share some or all of your assets.
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