The division of property is one of the most important issues surrounding a divorce and deciding how it will be divided between the couple can be challenging, so the more you know, the more informed you will be regarding the process.
In most divorce cases, the law on division of property is governed by the Family Law Act under which the spouses are entitled to the equal division of the family property, as well as any debt. The Family Law Act applies to both married couples and marriage-like relationships and any property or debt acquired during the marriage is classified as family property, meaning it is subject to division. Appreciation of property acquired before the relationship is also included.
The only time property is excluded from division is if the couple has a prenuptial agreement, marriage agreement or a cohabitation agreement which states that certain property would not be subject to division should the couple ever divorce. Certain types of property may also be excluded and the Family Law Act will consider if it will remain a separate property for one spouse after the separation. This would include inheritances, settlements and gifts from a third party, all of which are considered excluded property.
Determining which property should be divided and which should be excluded can be done through an agreement or by court order. In order for an agreement to be enforceable, it must be in the form of a written separation agreement, which is a contract between the spouses specifically outlining any property that will be kept separate, property that will be considered family property as well as how that will be divided. It is highly recommended that each spouse get independent legal advice regarding this agreement so that each party knows their rights and comes to an agreement fairly; otherwise, a court can set aside an agreement on property division if it is determined that it was not reached in the proper manner.
If you cannot come to an agreement regarding property and how it should be divided, you can turn to the courts who will determine family property, debt, excluded property and how they will be divided. In many cases, the family property and debt will be divided equally; however, the court can also order an unequal division if they determine that it would be highly unfair to divide it equally. Factors like the duration of the relationship, contributions to the career of one spouse and acting in bad faith will help determine whether or not there should be an unequal division of property.
The issue of property division can be very complicated, but The Resolution Alternative can help with this aspect and any other matters related to a divorce. Located in Toronto, they can provide mediation to help this challenging and difficult process become an easy and bearable situation, so if you want to put this chapter of your life behind you, give The Resolution Alternative a call today.
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