May 25, 2012

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Vancouver Family Lawyer discusses the New BC Family Law Act

Marla Gilsig, one of BC’s family law leaders, discussed the new Family Law Act (FLA) during her recent presentation at Whistler, BC.  Ms. Gilsig noted that the FLA will be law in about the next 6 months.  The FLA applies to couples in common law marriages and civil marriages and covers both opposite sex and same-sex relationships.  Here are some highlights.

Family Law Agreements will be the norm …   The Government through the FLA encourages couples to enter into family law agreements.  There are four types of family law agreements: cohabitation, prenuptial and postnuptial agreements and separation agreements.  Family law agreements protect you financially during the marriage and upon the breakdown of the marriage.  The FLA provides a “significant unfair test” that directs Judges to leave family law agreements alone and not vary these agreements unless the agreement is significantly unfair to one spouse. In other words, if the agreement is a little unfair to one spouse, the agreement shouldn’t be varied by the Judge.

Included Property and Excluded Property …   The term “family asset” in the Family Relations Act (FRA) is eliminated in the FLA and replaced with the terms “included property” and “excluded property”.  Basically, all property is considered family property and can be reapportioned unless a spouse demonstrates it is “excluded property”.  If the spouse wants the property to be only their property, the obligation is on the spouse to prove it should be excluded.  One of the best ways to accomplish this is to have schedules and valuations of included and excluded property in any family law agreements that are drafted.  It is important to constantly remind yourself, that a spouse’s property includes assets, debts and liabilities. 

Unequal Division of Property …   Like Section 65 of the FRA, Section 95 of the FLA provides for the possibility of unequal division of property between the spouses and sets out factors to be taken into account when considering whether there should be an unequal division of family property.  When drafting family law agreement, the lawyer should have schedules and valuations of included property and excluded property and the basis for any unequal division of included property between the spouses.  

Date of Separation replaces triggering events …   The FRA provides for certain triggering events for determining when the spouse’s property becomes divisible.  Instead Section 81 of the FLA provides that the only triggering event will be the date of separation, that is the date when one of or both of the spouses decided that they no longer wanted to married or in a common law marriage and wanted to live separate and apart.  It will be advisable for the spouses to seek agreement as to the date of separation at an early point in the negotiations and to clearly set out the date of separation in the separation agreement.

To learn more about your family law rights and obligations and family law agreements, contact Marla Gilsig at info@gilsig.ca to schedule a visit.  Ms. Gilsig is a family lawyer, collaborative lawyer and mediator who prefers problem solving and drafting agreements to litigating and court fights. 

 

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