Division of Property
Sorting out who is entitled to what when a relationship ends or a spouse or partner dies is a difficult and emotionally-charged process. If you are facing a division of property issue, it is important to have experienced legal counsel in your corner to provide reliable legal advice and ensure that your rights are protected.
Since the Family Law Act applies only to couples who are legally married, the way property is divided upon separation or death depends upon whether or not a couple is legally married.
Division of Property upon Separation of Legally Married Couples
Division of property upon the breakdown of a marriage is governed by the provisions of the Family Law Act. It is designed to share – or equalize – the accumulation of wealth by the parties during the marriage. This accumulation of wealth is referred to as “net family property,” and this is what is divided equally between the parties. This division is typically achieved either by an equalization payment or by transfer of assets from one party to the other. There are special rules relating to the matrimonial home, gifts, inheritances and other issues. Depending upon the value and kinds of property owned by separating couples, achieving a fair and equitable division of property can be quite complex.
Whether you have already separated or are just considering it, contact the experienced family law lawyers at Spiteri & Ursulak to find out how your property will be divided. We can work with you to negotiate a fair property settlement or, if necessary, represent you in court to obtain the best result possible.
Division of Property upon Separation of Common Law Couples
Unlike with married couples, there is no legislation governing property division for common law couples who break up. There is no automatic right to share in the value of property owned by your common law spouse, and property is divided according to ownership.
However, this can lead to very unfair results. Since the 1970’s, Canada’s courts have been developing something called the doctrine of constructive trust. It can be used to allow a party to share in the value of an asset to which he or she has contributed, even if that asset is owned by the other party. Basically, if one party would be unjustly enriched if he or she kept all the value of an asset and the other party would be correspondingly deprived, a constructive trust allows the non-owner to claim an interest in the value of the asset. It is not automatically an equal interest: the value of the claim depends upon many factors.
Contact the experienced family law lawyers at Spiteri & Ursulak to receivecompetent advice and skillful representation in achieving a fair resolution of property issues.
Division of Property upon the Death of a Married Spouse
If you were legally married to your spouse and he or she left a valid will, you can choose between claiming an “equalization payment” (a payment calculated to ensure that each spouse receives an equal share of net family property) or receive what was left to you in the will.
If your spouse did not leave a valid will, you can choose whether to claim an equalization payment or inherit what is due to you as per Ontario’s intestacy laws, which provide what a married spouse should receive upon the death of his or her spouse.
The experienced family and wills and estates lawyers at Spiteri & Ursulak LLP can assist you in assessing the available options and determining which one is the most beneficial to you.
Division of Property upon the Death of a Common Law Partner
Common law partners do not have the right to inherent any of their partner’s property unless it is left to them in a valid will. However, the surviving common law partner can generally claim any money or property that he or she and the deceased partner owned jointly.
Limitation Periods Apply to Division of Property Claims
Limitation periods apply to claims regarding the division of property. This means that if you do not start your court action within a certain period of time following the separation from or death of your spouse or partner, you will be prohibited from bringing the action.
If you are facing a division of property issue, contact the experienced family law lawyers at Spiteri & Ursulak LLP as soon as possible so that we can ensure that no limitation dates are missed.
Family Law Lawyers Ready to Assist with Division of Property Matters in Ottawa and Toronto.
If you have questions about division of property issues, please contact our experienced family law lawyers at 613-563-1010 or info@sulaw.ca.
