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  • Sea to Sky Law

Marital Separation

In a marital separation, money is a hot topic. Between spouses, the issue of money comes up in two ways = whether spousal support, also known as alimony, is payable and how to divide the assets and debts of both spouses.

Alimony is often resolved by applying the Spousal Support Advisory Guidelines after the incomes of both spouses are confirmed.

In British Columbia, it is the 2013 Family Law Act that addresses the division of assets and debts. Before 2013 debts were not addressed by the FRA, and common-law spouses had to make a trust claim for a share of the family assets. Since 2013 the law is almost the same for both married and common-law spouses, and debts are specifically addressed.

The starting point is an equal share of all family assets AND debts. The question of course is whether all assets and debts are to be shared since some can be excluded.

First, both spouses keep the value of the assets and debts they had at the beginning of their marriage. Spouses share the increase in the value of the debts and assets they each had before married, plus share equally any new assets and debts acquired since the start of their marriage.

However, in addition to the value of assets and debts existing prior to the marriage, some assets can be Excluded if listed in FLA section 85. For example, inheritance and gifts to only one spouse by third parties are excluded. This exclusion might not be lost even if used eg to pay down the mortgage.

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