Legal-Ease by Karen McNeilly
The Family Relations Act, which is the legislation governing separating spouses, including how property is divided between spouses, is being replaced by a new act, the Family Law Act on March 18.
The Family Law Act will bring many changes in how separating spouses settle their disputes, particularly in how assets and debts are divided between spouses when a relationship breaks down.
The most radical change from the current legislation is that the law will apply the same to both married spouses and common law spouses. To be a common law spouse, two people have to live together as a couple for two years.
Once the Family Law Act comes into force, property brought into a relationship is protected and will not be divided with your spouse; only the increase in the value of the asset during the course of the relationship will be divided equally with the other spouse. Any assets purchased or obtained during the relationship will be divided equally between the spouses, without consideration of who contributed more in cash or labour. All debt acquired during the relationship by either spouse will also be divided equally between the spouses.
Another major change is in how parenting relationships are governed. The concepts of “custody” and “access” are being replaced with “parenting responsibilities” and “parenting time”. There is a philosophy of equality among parents in the legislation in how parenting responsibilities and parenting time is shared between the parents.
Both parents will automatically be guardians of the child, and be entitled to both parenting responsibilities and parenting time, as long as both parents lived with the child before separation. Only a parent who has not lived with their child will not automatically be a guardian, but can become a guardian by agreement with the other guardian, or court order. The court must consider only the best interests of the child when making decisions affecting the children.
Another change is that if you have not been living together for two years, so do not qualify as a common-law spouse, but you have a child together the new legislation will allow a parent to seek spousal support from the other parent.
If you have already settled issues with your former spouse through a signed separation agreement or court order, or your court action has already been commenced, the new act will not apply to you; the current Family Relations Act will continue to apply. Separated spouses who have not commenced a court action, or signed a separation agreement by March will be governed by the new act.
If you are considering separation, or have recently separated, you should consult a lawyer prior to March 18 to understand how these changes might affect you.
Karen McNeilly is an associate lawyer with RDM Lawyers LLP. Karen practices exclusively in the area of family law. If you have questions or comments about this article, please email legalease@abbynews.com.