Division of Family Property and Debt

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In many ways the division of family property and debt following a separation can be both simple and complex.  It can be a simple process as the division of family property and debt is governed by our Family Law Act and the framework of the legislation is based on the concept that assets and debt accumulated during a marriage or relationship is prima facie divided equally upon separation or divorce.  However, some assets that are accumulated during the relationship such as through an inheritance or gift are considered ‘excluded property’ that is not subject to a division with a spouse.  Likewise, assets brought into a marriage or relationship by one spouse are also excluded property and only the increase in value of the asset during the relationship is divided with a spouse.

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Determining the Date of Separation

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Determining the date of separation for both married and common law couples can be very important in any family law case.  For example, the date of separation is used to determine when a divorce order can be obtained on the grounds of living separate and apart for at least one year.  As another example, a common law spouse has only two years from the date of separation to pursue a spousal support claim (Section 198 (2) of the Family Law Act).  Similarly, a common law spouse that wants to pursue a claim for property division under the Family Law Act must commence a court proceeding within two years from the date of separation. 

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