Monday August 29, 2016

Times are Changing in Family Law

Authored by: Terrance G. Sheppard Posted in: Family Law

The face of the Nova Scotian family has changed since the creation of the Matrimonial Property Act (MPA). This legislation was drafted with traditional gender roles in mind, with only one primary bread winner.  It was a time when people married younger, with less accumulated wealth and where people were more likely to remain in a single marriage. It did not contemplate common law relationships or same sex marriages. Simply put, it was drafted for a different reality than the one we face today.

In an effort to address our changing circumstances, The Law Reform Commission of Nova Scotia has released a discussion paper regarding its proposed changes to how property should be divided upon dissolution of a relationship. This paper is meant to start a discussion and encourage comments and input on the suggested reforms.

Today, common law relationships represent a larger portion of relationships than when the MPA was first drafted. At this point, only minor adjustments have been made to ensure that the members of these relationships are protected if their relationship should end. Currently, common law couples can register as a Domestic Partnership in order to bring them under the provisions of the MPA. However, many common law couples do not register and therefore are unable to access statutory protections available under the act. Without the statutory protection of the MPA, there is no presumption of an equal division of property upon dissolution of a common law relationship. Common law couples are restricted to equitable claims which take longer, are less predictable and are inevitably more expensive. Couples who do not enter into a marriage or register for a domestic partnership may be setting themselves up for a more complicated legal process.

The commission proposes to remedy this problem by changing the MPA to include common law couples. In the opinion of the commission, common law relationships function in similar ways to traditional marriages. They typically show a similar level of economic integration, and one partner often forgoes economic advantages for the benefit of the family. Couples who wish to keep their affairs from falling under the legislation could choose to contract out with a written agreement. Ultimately, as common law relationships become increasingly common, it may be more efficient to have couples opt out of the protections rather than opt in.

The question of whether business assets held by one spouse should be considered matrimonial property is another issue addressed by the commission. Currently, business assets held by only one partner of the marriage are presumed not to be shared between the spouses upon divorce. These assets can only be divided between the divorcing parties if a judge determines that it would be unfair if they were to remain only with one.  The commission feels that current legal thought that presumes an exclusion of business assets, does not recognize the reality that it is the marriage, not just one of the spouses, that bears the risk of the business. Given that the risk is borne by both spouses, the commission feels that both spouses should share in its benefits following a divorce.  While this proposal is only at the discussion stage, its introduction into a matrimonial property regime would be an enormous change in the law.

Nova Scotia is also one of the few provinces that still considers the property you own before marriage as matrimonial assets. This means that the property that you enter into the marriage with is presumed to be divided on an equal basis upon dissolution, with exceptions for some personal items such as clothing, medication, and other small personal effects, and this is no longer likely to happen. In order to address the complications the current law presents in dividing matrimonial property, the commission proposes that only property acquired after cohabitation should be considered matrimonial. This would allow individuals to keep what they feel is their property entering the marriage, but also share in the benefits arising from the period of the relationship.

As the makeup of Nova Scotian families continues to evolve, so will the legal structures that protect them. The proposals discussed above are only some of the changes that have been proposed by the commission. If you have thoughts regarding the possible changes discussed above, or any other proposals included in the commission’s discussion paper, the commission will be accepting input until August 31st, 2016. Do not hesitate to share your opinions with them and help shape the next generation of matrimonial property legislation.

To comment or read the discussion paper, please click here for more information.  

 

Articled Clerk Edgar Brown assisted with this post.

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