Division of Property

The Family Property Act now applies to both married couples and to non-married couples who meet the definition of “adult interdependent partners” (“AIPs”) on January 1, 2020 or later.

AIPs are people who have:

  1. lived together in a relationship of interdependence for at least three years;
  2. lived together in a relationship of interdependence of some permanence (can be less than three years) and have a child together; or
  3. entered into an adult interdependent partner agreement.

A “relationship of interdependence” is defined as a relationship outside marriage in which any two people share one another’s lives, are emotionally committed to one another, and function as an economic and domestic unit.

Non married couples as well as married couples may apply for family property orders.

On application for a family property order, the court may determine which assets are to be divided, calculate their value, and make an order regarding the distribution of those assets between the partners in a manner that it considers just and equitable.
There are essentially three categories of property to be considered:

Exempt Property – examples include: gifts from a third partner, property acquired before the relationship began, proceeds gained from inheritance or an insurance policy.

Exempt Property that has Increased in Value – this applies to property which originally fell into the exempted category but which has been used to purchase other assets that have generated income or grown in value during the relationship. The difference between the original value and the current market value is considered divisible.

Divisible Property – all other property not falling into the above two categories is considered divisible.

There is a presumption by the Courts towards an equal distribution of family property. However, many other factors, such as the contributions of each partner, the terms of prior agreements, the duration of the relationship, prior court orders and any other facts or circumstances that are relevant are all considered in the division of property.