Division of Property

Property is divided in a family law case based on whether the property is considered “family property” or “excluded property” under the Family Law Act.

Under the Family Law Act family property is property that is owned by at least one spouse or a beneficial interest of at least one spouse in property on the date of separation. Family property can also include property that a spouse acquires after separation that is derived from family property owned at the time of separation. Family property includes the following:

  • any real or personal property;
  • share or interest in a corporation;
  • a stake in a business;
  • property owed to a spouse;
  • refunds, including income tax refunds;
  • money in bank accounts;
  • pensions;
  • RRSPs; and
  • any increases in value of property that was obtained before the marriage.

On separation, each spouse is entitled to an undivided half of all family property and debt. Disputes can occur over whether certain property is considered family property or should be excluded from equal division. The Family Law Act defines excluded property, that is property not considered to be family property and not subject to equal division. Excluded property includes any property that was acquired by one spouse before the relationship began, inheritances, gifts from a third party, compensation for injury, compensation under an insurance policy and money placed in trust. It is up to the party claiming a certain property is excluded to show why it should be excluded. However, excluded property could still be divided evenly if the court finds it would be significantly unfair to proceed with unequal division.

Another issue is the value of the property. The Family Law Act stipulates that the value of any family property or debt must be determined, by fair market value, on either the day of the court proceeding or on the date of an out-of-court agreement over the division of property. This is important, particularly when it involves property such as real estate, because such property can significantly appreciate or depreciate after the date of separation.

The division of property between a couple is rarely easy and can involve significant calculations, valuations and negotiations. Property division can become even more complex where the property in question concerns ownership in businesses, trust accounts, multiple bank accounts, pensions, or multiple real estate properties. At Acumen Law, our family law lawyers can guide you through this process and work to get you a fair division of your assets. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).