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Unequal Division of Family Property: When Court Orders It

Providing expert legal services for civil, family, construction, wills and estates and business law.

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Unequal Division of Family Property: When Can the Court Order It?

The law surrounding the division of property in a divorce is complex. In Canada, the court can order an unequal division of family property in certain circumstances. Under the Family Law Act, there are two types of property: family property and excluded property. Family property is divided equally between spouses, unless there is a reason to do otherwise. Excluded property is not divided between spouses and includes gifts, inheritances, and property owned before the marriage. The court can order an unequal division of family property if it would be unfair to divide the property equally. The court will consider a number of factors when making this decision, including the length of the marriage, the financial contribution of each spouse, and the needs of each spouse. If you are going through a divorce, it’s important to seek legal advice to ensure that your property is divided fairly.

When Does the Court Order an Equal Property Division?

In BC, the court will usually order an equal division of family property and debt on separation regardless of their respective contributions under Section 81 of the Family Law Act, unless there is an agreement that says otherwise. If a family law claim has been started in BC Supreme Court, spouses can agree to an unequal division of property and debt and incorporate the terms of their agreement into a Consent Court Order.

When Does the Court Order Unequal Division of Family Property?

The court may order an unequal division of family property in cases where there is a significant difference in the value of the parties’ property or where one party has significantly greater income-earning capacity than the other. The court may also consider other factors, such as the length of the marriage and the needs of the parties, in determining whether to order an unequal division of property. Valid reasons for an unequal division of family property can include, but are not limited to:
  1. One spouse contributed significantly more to the acquisition, preservation, or improvement of the property;
  2. One spouse has a significantly greater need for the property;
  3. One spouse will suffer significantly more significant hardship if the property is divided equally;
  4. The property is subject to a significant debt or other liability;
  5. The property is a family home, and dividing it equally would be impractical or cause undue hardship; or
  6. Other special circumstances justify an unequal division.

What Are the Factors That Influence the Court’s Decision for Unequal Division of Family Property?

The court takes into account a number of factors when making a decision about the unequal division of family property. Some of the key considerations include:
  • The length of the marriage;
  • The contributions made by each spouse during the marriage (including financial and non-financial contributions);
  • The needs of each spouse;
  • The age and health of each spouse;
  • The income and earning capacity of each spouse;
  • The value of the property to be divided;
  • The impact of the division of property on the ability of each spouse to meet their needs;
The court will also consider any agreements that the spouses may have made about the division of property, as well as any relevant factors set out in provincial or territorial family law legislation.

The Bottom Line: Understanding the basics of Unequal Division of Family Property

If you are married and thinking about getting divorced, it’s crucial to understand the basics of the unequal division of the family property regime. This will help you to determine whether it may be an option for you, and if so, what factors the court will consider in deciding whether to grant an unequal division of your property. If you are facing divorce and need help with asset division in Abbotsford, get in touch with Pathfinder Law today. We can help you protect your assets, and ensure that you get what you are entitled to. Contact us today to schedule a consultation!

Disclaimer – The information contained herein is of a general nature. It is not intended to be legal advice and it is not intended to address the exact circumstances of any particular individual or entity. You should not rely on or act upon such information without receiving appropriate professional advice and without a thorough examination of your particular situation.