Common Law Property Division Changes Coming

On November 14, 2011, the Provincial government introduced Bill 16, which features a comprehensive revamping of the property law regime in the province.  One significant change is that Property Division, which did not previously apply to “common law” spouses under part 5 of the old Family Relations Act, will now apply “common law” spouses.

The bill has not yet been passed, and of course there may be amendments or it may not pass at all.  However, now is the time to take a serious look at your situation if you are in a “common law” relationship.

Of particular relevance to those in “common law” relationships is the proposed transitional section 252 of Bill 16.   Section 252 provides that if you have an executed agreement regarding property, or if you have started a court proceeding regarding property division, before the act comes into effect, then the old Family Relations Act will apply to your case.  If you are in a common law spouse with the lion’s share of the property and considering separating, get to a lawyer to discuss your options as soon as possible.  Delaying could be very costly.

Posted: November 23rd, 2011 under Legislation Analysis.
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Agreements are meant to be followed

At Henderson Heinrichs, we regularly negotiate and conclude separation agreements for our clients.  Parties cannot take the provisions of these agreements lightly.  When you reach an agreement with your ex-spouse, you had best stick to it.  That’s what the court concluded in the recent Supreme Court of British Columbia case of Owen v. Owen, 2011 BCSC 1284.

In Owen, the court was faced with non-payment of spousal support by a wealthy husband, in contravention of the terms of a separation agreement.  The court found that, in addition to losing the money itself, the wife lost certainty, security, and the ability to budget, invest and control her own financial resource, all of which she had bargained for in the agreement.

Because of this, the court agreed that the Agreement had been repudiated by the husband, and on the basis of the action brought forward, that the wife accepted that reputiation.  The result was stark:  the husband was required to pay back the arrears that had accrued under the terms of the agreement to the date the repudiation was accepted.  Further, the wife was freed from her obligations under the agreement and was able to once again pursue a reapportionment of the very substantial family assets, something that she had given up under the agreed upon terms.  Finally, as the agreement was no longer in effect, the husband was once again required to pay a higher, interim, spousal support sum which had been ordered prior to the Agreement being reached.

The wife, of course, did not have to accept the repudiation, and she could have sought a far more common remedy; namely, that the agreement be enforced.  But the choice was hers, and it serves as a valuable reminder that the person breaching the agreement will rarely receive benefit for that breach from the court.

Posted: October 26th, 2011 under Agreements, Case Analysis, Procedure.
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