Q: After many years of marriage my wife left me and is seeking a division of property, spousal support and divorce. Given that she is leaving for no good reason it seems unfair that she should get some of the property and also spousal support.
A:The fact that one spouse left does not make any difference in either spousal maintenance or division of property. Under the Divorce Act a court can order spousal support and “shall not take into consideration any misconduct of a spouse in relation to the marriage.”
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Similarly, in dividing property, the factors to be considered are the contribution made by each spouse toward the marriage and acquisition of property. In many provinces legislation clearly states that in dividing property, the judge must start with the presumption that each spouse has contributed equally and therefore property is to be divided equally. The court can only make an exception if dividing property equally would be unfair.
It makes sense that conduct should not determine support or how property should be divided. In my opinion, there is seldom one single factor that leads to a marriage breakdown. If we make conduct a factor in determining support and property rights, it will often mean a nasty battle and will boil down to “she said, he said” and a judge having to decide who to believe. This would lead to an emotional situation becoming even more charged. Better to keep blame and fault out of it.
Q: When property is divided, you have said in a previous column, the fair market value of anything brought into the marriage can be exempted from division. Let us say the husband brought in a section of land, which is then sold. Can the husband claim an exemption for the fair market value?
A: It will depend on what happened to the proceeds. If they are kept separate from the rest of the assets and designated as belonging to the husband, then the exemption will probably continue. If the husband bought other land with the proceeds, and title to that land remained in his name, the exemption might also continue.
On the other hand, if the money was invested in Canada Savings Bonds in joint names, the exemption would probably be lost.
Finally, remember the exemption is not absolute. Even if the land is not sold, a judge could ignore the exemption if applying it would be “unfair and inequitable.”
Q: Isn’t it better to live common law and avoid all the legal complications that occur when a couple breaks up?
A: There is not a great difference in obligations between married couples and those living common law.
Parents have an obligation to support children whether born in or out of marriage. In some instances, a common law spouse may have to pay spousal maintenance. The Supreme Court of Canada has ruled that a common law spouse is entitled to a division of property based on his or her contribution to the relationship. Contribution has been defined as including child care and household maintenance.
In response to an earlier column, a Saskatchewan lawyer drew my attention to a Saskatchewan Court of Queen’s Bench judgment in which the judge said that the law for common law spouses should be the same as for married couples.
In W vs. W, a common law wife applied to have exclusive possession of the matrimonial home under the Matrimonial Property Act. The common law husband argued that the act only applied to married couples. The judge ruled that the Charter of Rights and Freedoms guaranteed equality under the law and therefore the Matrimonial Property Act must also apply to common law spouses.
