Until Monday, common-law spouses had no property rights under B.C. family law. Now, like married people, they have a choice.
Couples can now elect to be part of the legislative scheme set out in the new Family Law Act, or by written agreement can opt out of it.
Further, the Family Law Act sets out a statutory scheme of shared and excluded property, a welcome change that is long overdue.
While the legislative initiatives in the 1970s were necessary to move toward a just society, over time those very legislative safeguards became constraining and unfair.
The most recent Statistics Canada information confirms that family-law clients are not all married and those who are married are not staying that way.
Common-law unions, which only 40 years ago were seen as less than desirable, are now more often the norm.
The concept of excluded property makes complete sense when considering the reality of blending and restructuring of today's families.
Just as legal ownership should not have prevented the equitable sharing of family property under the old law, the mere fact of marriage should not be the starting point for the division of family property in 2013.
Social pressure led to a community-property regime under the old Family Relations Act, and changing social mores have led to the need for an excluded-property regime today.
The Family Law Act allows spouses to retain gifts, inheritances and pre-acquired property. What is shared upon separation is the increase in value flowing from those assets, not the assets themselves.
In addition, one of the underlying fundamental purposes of the new Family Law Act is to give families options beyond the courtroom.
The changes in family law in the 1970s saw family cases exploding into the courtroom. As more and more cases were litigated, the limits of that process for families became glaringly obvious. The adversarial system for determining truth between strangers was never designed to deal with the intricacies of a shared-parenting plan.
The unique demands of family law led to the development and expansion of mediation and more recently, collaborative law, which are designed to provide the participants control and support.
Litigation should now be seen as the alternative process, as it is not necessarily the first or best option for families.
Changing social attitudes toward marriage, separation and divorce have been paired with a changing view of children.
Just as human-rights legislation has developed over the last 40 years, the concept of children’s rights, separate and distinct from their families, has also taken root.
The Family Law Act not only provides new terminology for families, it speaks of parenting responsibilities, and the only consideration for separating families is the best interests of the children.
Further, the Family Law Act explicitly states that “an agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.”
The Family Law Act is reflective of our current society. It gives families and lawyers more options. And, if necessary, it gives the court the right tools to resolve family disputes in a more holistic and child-centred way.
Mary E. Mouat is a Victoria lawyer and mediator.
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