Divorce Ads
I came across an article in the Walrus last week regarding a Chicago law firm which put out a rather risqué advertisement trumpeting, “Life’s short. Get a divorce”. This got me thinking about what, as family lawyers, the line is between our facilitating the breakdown of a relationship and our advocating that breakdown. The advertisement perpetuates the stereotypical “ambulance chaser” image of lawyers, but in this case the chaser actually advocates the accident. The danger of glamourizing that which is, for virtually everybody involved, a serious and difficult undertaking ignores the complex and often destructive ripples left by that breakdown, not only on the parties, but on the children of the parties. Divorce is not fun; it is not trivial, and to treat it in a flippant manner disrespects those who treat their relationships seriously.
Posted: August 12th, 2010 under Divorce.
Tags: advertising, Divorce, family lawyers, lawyers
Will Common-Law Mean the Same as Married Under the Proposed New Family Relations Act?
Yesterday, BC Attorney-General Mike deJong released a White Paper, which contains proposals and recommendations for a revised Family Relations Act. Family law in BC is regulated primarily by the federal Divorce Act and the provincial Family Relations Act. The Family Relations Act has not been extensively reviewed since the 1970’s. There are, naturally, hundreds of recommendations made in the White Paper, but one that is causing quite a stir is the proposed change in the treatment of property in common-law relationships.
Currently under the Family Relations Act, persons who have cohabited in a marriage-like relationship for a period of two years are deemed to be in a common-law relationship. This provides them with certain rights upon separation, although those rights are nowhere near those afforded to married couples. Primarily, persons in a common-law relationship can claim spousal support within one year of separation and of course child support in the event there are children; however, there are no rights to the other person’s property unless a claim for trust is brought by way of litigation. Trust claims are complex and fact intensive, making them expensive to litigate.
The new proposals would change the rights of common-law spouses in a significant way. Once the couple has passed the two-year cohabitation mark and become officially common-law, the parties’ property, pensions, presumptively belongs 50/50 to each of them, save and except in particular circumstances, most notably that pre-relationship property would not be subject to this division. In addition, the parties’ post-cohabitation debts, irrespective of who incurred them, would also be split 50/50.
In addition, another category of cohabitating spouses is proposed in the event a common-law couple has a child, but has yet to reach the two-year milestone. In the White Paper, this is described as a couple who have a child and are in “a marriage-like relationship of some permanence”. They would then become subject to the 50/50 division on separation. What exactly that means is not set out in the White Paper, but is sure to be litigated early on if adopted in the changes to the Family Relations Act.
What does this mean? Obviously it is too early to tell, but our initial suspicion is that many couples intent on cohabiting will be proactive and engage in written agreements contracting themselves out of these provisions. We envision that these agreements would be similar to marriage (aka pre-nuptial) agreements, in an effort to protect assets from the new provisions of the Family Relations Act.
Certainly the proposed changes to the Family Relations Act as they relate to common-law spouses indicate that the legislature intends to treat cohabiting spouses as something more akin to married spouses than in the current state of affairs.
-JMH
Posted: July 19th, 2010 under Common Law, Divorce, Legislation Analysis, Procedure.
Tags: British Columbia, Family Relations Act Reform, Legislation, Reform, White Paper
Getting Married, Separated, or Divorced? Time to think about your will.
The laws of British Columbia with regard to familial relations and wills and estates interact in a way that you need to be aware of if you want to make sure that wishes are honoured if you pass away. These are a few of the common issues that you should be aware of:
If you are getting Married:
Wills in BC are governed by the Wills Act. Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage. If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act. So if you get married, make sure you revisit your will if you want your final wishes to be respected.
If you are getting Divorced:
Unlike getting married, getting divorced does not cancel your will. However, it can change your will. Any parts of your will that name your former spouse as executor or as a beneficiary of your estate are cancelled. The division of your estate can be complex and unpredictable if these portions of your will are cancelled. If you are getting divorced and you named your former spouse in your will, you should seriously consider getting a new will.
If you are separated and planning on getting Divorced.
The process of getting divorced can often take some time. Even if you are separated from your spouse and have started divorce proceedings, your will is still valid. If you are separated but not divorced and do not have a will, a substantial portion of your estate will go to your spouse if you pass away before getting divorced. Under both of these circumstances, you should consider immediately getting a new will which explicitly sets out that you are making the will with your impending divorce in mind, and which reflects your wishes.
Posted: November 18th, 2009 under Divorce, Wills and Estates.
Tags: Divorce, estates, wills
