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Family act may stop relationships before they're even started

Brett Kirkpatrick says the new Family Law Act affects all couples: married, common-law, and those in the first years of dating.
March 22, 2013 - 4:56 PM

By Charlotte Helston

There may have been some interesting conversations over breakfast Monday morning after common-law couples woke up with the same property division rights as married couples. And it's not just those who've been living together for the designated two years who are affected. A Vernon family and divorce lawyer thinks the legislation will get dating couples thinking about the future too.

"If the relationship looked like it was going to go south after a year and a half, a lot of couples would have given it another six months to try and fix it, but now after two years, you're stuck," Brett Kirkpatrick says. "The legislation will make people think about those things before the two year mark."

Under the new Family Law Act, property division rules apply equally to common-law couples who have lived together in a marriage-like relationship for two or more years. If the couple breaks up, any property they accrued together is split down the middle. Property acquired before the relationship and things like inheritances are excluded from the law.

"A common-law couple together for 15 years likely thought it was all still separate property, but as of monday morning, all that changed," Kirkpatrick says. "I have clients in a very different situation than they were in a week ago."

Many couples choose common-law over marriage precisely because they want to keep assets separate. "With marriage, it's a choice to share our lives equally," Kirkpatrick says. "I've had clients mention that to me, that they didnt want to get into division of property, which they now have to. They were trying to avoid that."

Couples can choose to opt out of the law, and Kirkpatrick says clients are already coming in to start the process, which requires drawing up a cohabitation agreement.

"You have to negotiate it like any contract. You make up your own rules, you might exclude some property. You might not decide on a 50/50 split."

The act is intended to ensure equality between both partners if they separate, and Kirkpatrick agrees it will help get the job done. "It's a bit funny, under the old regime, the common-law husband or common-law wife would have to make a trust claim, in other words, show their contribution to, say, the house," Kirkpatrick says. "The higher wage owner, which does tend to be the man, typically takes out the mortgage and it's all in his name. The other partner has to prove they contributed, say, by making repairs."

But measuring contribution is no simple task, and it's not limited to hard cash. "If the woman stays home to take care of the children, and doesn't pursue her career, then she's giving something up. Is it fair that she wouldn't get any property because she didn't financially invest?"

Measuring that contribution is something that rests in the hands of the judge handling the dispute, and Kirkpatrick notes that every judge has his or her own perspective.

"The act will smooth out people having big court battles because the rules are now much more predicatable, and therefore the outcomes are more predictable," Kirkpatrick says. "So now lawyers can better advise their clients on what to do, if they need to take it to court or not. It's better for their finances to handle it outside the courtroom. It eases up the court system."

While things are clearer now for the aftermath of a break-up, matters may be murkier for couples under the two year mark. Kirkpatrick thinks the legislation may impact their desire to work through rough patches.

"If you sniff out you're in a bad relationship," Kirkpatrick warns, "get out before two years. "

More information on this topic can be found here.

To contact the reporter for this story, email Charlotte Helston at chelston@infotelnews.ca or call (250)309-5230.

News from © iNFOnews, 2013
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