You can rely on us to represent you in Family Law property division in Nanaimo. And we will work hard to achieve the best possible outcome for you.
PROPERTY DIVISION – COMMON QUESTIONS
Failure to properly draw up your division of assets may result in legal uncertainty regarding the ownership of your property. You may remain liable for future claims, and also for property transfer tax when you transfer property. This can often be avoided if a separation agreement is legally executed.
Note that time limits apply for an application for property division or settlement.
Financial and property Court applications can be made any time after separation, but may be time-barred after 2 years from the date of either separation or divorce. This may result in a poor legal outcome, particularly if property is held in your former partner’s name. Failure to divide property is also a common cause of dispute after separation. It is therefore very important that property division is acted upon promptly following separation.
BY CONSENT OR OPPOSED?
We usually begin our handling of property matters by negotiation with your former partner to determine whether or not agreement by consent is possible.
If you are in agreement with your former partner regarding a division of assets, a Separation Agreement is usually the most simple and cost-effective way to make that agreement legally enforceable. If you are not in agreement, further negotiation, mediation, or property division court proceedings may be required.
Initially, we therefore usually ask for your authorisation and funding simply to determine whether or not we can reach an agreement. Once those negotiations have taken place, we will ask for your approval for the next stage of work, being either the preparation of a separation agreement or the initiation of contested property procedures. You should only request the preparation of a Separation Agreement if you are in agreement with your former partner and no issues remain in dispute.
WHAT IS A SEPARATION AGREEMENT?
A Separation Agreement is a written agreement which complies with the Family Law Act. It can provide a ‘clean break’, financially speaking, between you and your former partner.
The agreement specifies how the assets and liabilities of the parties to a marriage or common law relationship will be dealt with. It can also deal with children’s issues, support and some other matters.
Different versions of the agreement can be made before a relationship is entered into (and is sometimes called a ‘prenuptial agreement’), during a relationship, or after its breakdown.
WHAT DOCUMENTS MAY BE REQUIRED TO COMMENCE A PROPERTY DIVISION?
You will likely be asked to provide the following information:
- Your income tax returns and assessments (last 3 years);
- Bank account / RRSP / RESP / TFS balances;
- information regarding any real estate held by your or your former partner, whether in Canada and/or overseas, and – if already available – appraisals confirming their value;
- information regarding any shares and investments;
- Any business or trust profit / loss details; and
- details of your liabilities including but not limited to FMEP liabilities, credit cards, store cards, personal loans, mortgages, personal and/or corporate taxation debts and contingent liabilities under contracts with third parties.
ENSURING VALIDITY OF A SEPARATION AGREEMENT
A party can apply to set aside a separation agreement only in very specific circumstances, including:
- Fraud, including material non-disclosure (such as failure to disclose the existence of or true value of a significant asset). It is therefore very important that you are up-front with us in disclosing all assets.
- If duress or coercion is placed on a party to sign the agreement (particularly if no independent legal advice was provided to that party).
- If a party entered into the agreement for the purpose of defrauding or defeating a creditor.
- If the agreement is not prepared properly and in accordance with the legislation.
- If circumstances arise after the agreement which make it impossible or impracticable to be carried out, in whole or part.
- The terms of the agreement are not in the best interest of your children; or
- The separation agreement is plainly unfair (e.g. one spouse waives his/her right to support without compensation).
What Happens if We Cannot Agree?
Separation agreements can only be entered into if you are in agreement. Sometimes, negotiation is necessary before parties come to consent. At other times, there is no possibility of agreement regarding a division of assets and we will be required to bring an Application to the court to help decide the issue. Whatever is required to resolve a division of assets for you, we can assist.
Contact us now on 250-824-1255, or via the contact box below, to arrange an appointment to see us about your Nanaimo Property Division matter.