There has always been a great deal of stigma around separation and divorce, and people assume that a divorce will be financially crippling.  This does not always have to be the case.  There are many ways to protect yourself financially when separating.

Married or Common Law – Does it Matter?

If you have lived together with your partner for 2 years or more, in a marriage like relationship, you will likely have have rights and obligations under the BC Family Law Act.  You will be treated the same under family law as if you are married to your partner.  This is often referred to as a “common law marriage”.  Even if you have not had a marriage ceremony, you still have the same basic risks and benefits under the law.

However, one key difference are time limits on property division rights for common law couples. These are a lot shorter then for married couples. It is important to get legal advice as soon as you separate. A simple consultation cost $400 and can save you thousands.

An Agreement is the Best Protection

The best way to protect your finances is to have an agreement before you become legally bound to each other.  This minimizes complications if the two of you separate in future.  If you are living with your partner under common law, this is called a cohabitation agreement.  If you are marrying, the agreement is called a marriage agreement or Pre-nup. Ideally, if you can agree on what to do with debts, assets, property, and financial support before you move in together, it will help make things simpler if you do separate. 

Cohabitation and marriage agreements with Butterfield Law can cost as little as $1500 plus tax, which is much less expensive than a contentious divorce later on.

Practical, forward planning,  is not always the driver in a romantic relationship, so it is not uncommon for couples to live together without a cohabitation agreement.  If you do not have a cohabitation agreement, and are considering separation, gather all the information you can.  Before you leave, make a list of bank accounts, RRSPs, assets, pensions, anything that is a financial asset or debt.

What About the Date of Separation?

One common point of conflict in family law cases is the date of separation.  The date of separation is extremely important, because it effects the timing for valuing an asset or liability for debt.  Valuation dates have to be either agreed between the parties or are defined by the court at the time of trial.  

It is best for both partners to be on the same page with regards to the date of separation.  However, if you disagree, you might need evidence of the separation date. Dates are sometimes reflected in texts or emails or other social media posts.  You can also record the separation date on a calendar or in a journal, tell your mutual friends you have separated, and keep emails from your ex-partner.The date of separation is not always the date one person moves out of the family home.  It is the date that you informed your spouse that you wished to separate.  In most cases, it also means that  you acted separate from them with regards to sexual relations and other relationship characteristics.

The BC Family law Act states

3(a)spouses may be separated despite continuing to live in the same residence, and

 (b)the court may consider, as evidence of separation,

 (i)communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii)an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

 

How Can I Protect My Property?

After separation, dividing up assets, and protecting assets can cause a lot of distress and conflict.  There are measures you can take to protect your property, such as filing a “Certificate of Pending Litigation” under the Land Titles Act.  This can prevent your ex from selling or borrowing against real estate assets, such as the family home, recreational or investment property.

Another option is to apply for an order with the court restraining your ex from selling or borrowing against assets.  This could prevent your ex from selling or transferring property that is subject to a family law proceeding.

It is a good idea to consult with legal counsel to make sure you have the necessary advice to protect your assets and safeguard your financial well-being.  For further advice, consider scheduling a consult with our Lawyer Mediator Michael Butterfield, or refer to our article on The Top 10 Smart Things To Do Before You Separate

Piers Young

Contributing Writer

This article is for information only purposes and does not replace the need for independent legal advice. All cases are different and we strongly recommend that you obtain advice on your specific set of circumstances from a qualified lawyer.