With so many couples separating and divorcing, it is important
for the general public to know that on March 18, 2013 there will be
a dramatic change in the family laws of B.C. The Family Law
Act will become law on that day and create a completely
different regime than what we have known since the 1970s.
The new law will reflect the realities of modern society. Those
realities include the fact that many couples are not getting
married, but choosing to live together instead, and that many
children are born through reproductive technology.
Here are some of the big changes:
1. Dispute resolution outside of court
It is no secret that the court system is very slow and there is
a backlog of cases waiting to be heard by a judge. It is also no
secret that when someone starts a lawsuit, positions are hardened
and people become polarized. This can be difficult for separating
spouses especially if they have to see each other for years to come
if they have children together. To address both issues, under the
new law, instead of court and the prosecution of a lawsuit being
the starting or focal point, judges can require litigants to try to
settle outside of court before a lot of court time is used. This
includes the assistance of mediators, arbitrators and the
collaborative law process.
2. Common law spouses can be awarded assets owned by the other
Common law couples will be treated the same as married couples
for the purposes of their rights to each other's assets. This
means someone who is not married but living with their partner for
two years or more can make a claim to the other person's
assets. In fact, if the common law couple have a child, this
entitlement kicks in even earlier. This was very different under
the soon-to-be-old law where only married spouses had a right to
claim assets from their spouse upon separation. Common law couples
were treated no differently than room-mates, which was that
"what's mine is mine and what's yours is yours".
There was no right to the other person's assets based on living
together as partners even where couples lived together for many
years and had children together. People who have avoided marriage
to get out of giving up assets upon separation should be seeking
legal advice and getting cohabitation agreements.
3. A child can have up to five parents
The new law has a comprehensive scheme for determining legal
parentage. Up to five people may qualify as parents of a child
conceived through assisted reproduction (the sperm donor, the egg
donor, the surrogate mother and the two intended parents). Yes,
technology has changed who can be a parent since the laws from the
4. Assets before marriage or cohabitation can be kept
Under the new law, only assets acquired during the relationship
or cohabitation will be dividable upon separation. If you had an
asset before the marriage or cohabitation, that asset will remain
yours, except to the extent of any increase in value of that asset
during the marriage or cohabitation. Under the soon-to-be-old law,
all assets in either the wife or husband's name could be
divided and some portion given to the other, even if the asset was
owned before the marriage or cohabitation. This is a big change
– it means that if the couple acquires only few assets while
they are together, and if the pre-relationship assets do not
increase in value, there may be few assets to divide when
separating, even after a relationship of many years.
The above are generalities and only represent some of the
changes to the law coming this March. There are many exceptions and
nuances in the law and the above is not meant to constitute legal
advice. Please consult with a family lawyer for advice on your
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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