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 spouse
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 1970s!
4. Assets before marriage or cohabitation can be kept separate
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 particular circumstances.
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.