When your marriage ends, the difficult and complicated process of untangling your lives begins. That includes dividing assets and debts. In BC, the general rule is that all family property and all family debt is divided equally when you separate, regardless of whose name the property or debt is in.
While BC spouses are entitled to an equal division of family property and debt, the right can be lost if deadlines for taking legal action are missed. Once the applicable time limit for property claims expires, the claim may be “statute barred” (i.e., lost forever).
It’s extremely challenging to know all the laws and deadlines and how they apply in your situation. Working with an experienced family lawyer is the best way to protect yourself and what’s important to you. The family lawyers at Onyx Law Group are highly skilled in the process of asset division and ensuring you get the true value of what you’re owed. Reach out to us today for a consultation with a dedicated family lawyer.
In today’s post, we’ll talk about the time limit for you to claim assets after separation and the serious consequences of waiting too long to start the legal process. We’ll also talk about ways to protect your legal rights and whether it’s possible to pause or extend the limitation period.
How Long After Separation Can You Claim Assets?
Section 198(2) of British Columbia’s Family Law Act sets out the time limits for starting legal proceedings. The limitation period is different for married spouses and common-law spouses.
What Are the Time Limits for Married Couples to Claim Assets?
If you’re legally married, the limitation period is two years. The clock starts to run from either the date your divorce is granted or the date your marriage is annulled by court order.
That means you must commence a claim in the BC Supreme Court to divide family property or debt no later than two years from either the date you get a court order granting you a divorce, or the date you get a court order granting an annulment.
Do Common Law Partners Have a Deadline to Claim Property?
Yes. If you’re in a common law relationship, the limitation period is also two years, but the event that starts the clock is different. You must commence a claim in the BC Supreme Court to divide property and debt within two years of the date you separated.
What Does “Separation” Mean Legally?
Whether you are legally married or common law spouses, separation occurs when one or both spouses decide the relationship is over (intention), communicate that decision to the other spouse (communication), and then behave as though the relationship is over (action). The date of separation is important for common law partners as it triggers the start of the limitation period for a property division claim. The separation date is important for married spouses because it impacts when they can get a divorce order.
The separation date is important for both married couples and common law partners for other reasons. The date of separation impacts what qualifies as family property and family debt (see the FAQs below for more on what those terms mean). It also triggers entitlement to claims for child support and spousal support.
How Is the Date of Separation Determined?
In some cases, the date of separation is very clear, for example, the day one or both spouses move out of the shared residence. In other cases, the date of separation is difficult to determine or disputed. There is no such thing as filing for legal separation in BC. Instead, when the date of separation is disputed, the court will look at various factors, including (but not limited to):
- When the spouses began living apart in separate residences;
- When they stopped having intercourse or a romantic relationship, and
- When they began living independent lives from a financial and social perspective.
Emails, text messages, letters, income tax returns, bank records, and social media posts are the types of evidence that may be needed to determine the date of separation when spouses can’t agree.
What Impacts the Deadline to Claim Property?
As discussed, the deadline to claim property division is different for married spouses and common law spouses. There are other factors that can impact the deadline.
Jurisdiction is one factor. In this post, we’re focused on British Columbia family law. If your family matter has connections to another province, territory, or country, the deadlines will likely be different. It’s essential to review the family law of the correct jurisdiction so you understand the time limit for division of marital assets in your situation.
Existing agreements can also impact the deadline. If you have a separation agreement in place that deals with property division, pension division, and/or spousal support and you want to set it aside or replace it with a court order, you must start your application no later than two years after you discovered, or reasonably ought to have discovered, that you have the grounds for making such an application. Valid grounds include undue influence, fraud, and nondisclosure of significant assets.
Are There Any Exceptions or Extensions to the Deadline?
We just discussed an important extension of the deadline that can arise to right wrongs in existing agreements. For example, if one spouse hid significant assets during the process of negotiating a separation agreement and the other spouse later discovers this non-disclosure, that spouse has two years from the date they discovered the non-disclosure to apply to change or set aside the agreement.
There is another important situation where the deadline can be paused. BC’s Family Law Act suspends the running of the usual two-year limitation period if spouses are engaged in family dispute resolution with a family dispute resolution professional or a “prescribed process.” So, if spouses are participating in mediation, arbitration, or collaborative family law processes or have professional assistance while actively trying to resolve their family dispute, the limitation period may be suspended.
Spouses should be very cautious about relying on that exemption to extend the limitation periods. It’s not enough for only one spouse to briefly talk with a family lawyer or for only one spouse to try to resolve things; the engagement of both spouses is required for the “pause” to apply.
Can You Claim Assets After the Deadline?
If your legal action is not started within the applicable deadline, your right to make a claim for property division is statute-barred. If you try to bring a court case to claim marital assets or divide family debt after the limitation period has expired, you should expect that your spouse will ask the court to dismiss your claim on a summary basis for that reason. That is a very harsh result, but it can and does happen.
It may be possible for salvage your claim by arguing, for example, that the date of separation is later than the separate date alleged by your spouse, or by arguing that the “dispute resolution” pause applies to the running of the time limit in your case. It’s strongly recommended that you speak to an experienced family lawyer without delay if you have concerns about the limitation period. There is no such thing as being too careful or too early when it comes to protecting your legal rights.
How to Protect Your Rights After Separation
There are steps you can take to protect your legal rights after separation. It’s a good idea to make note of your separation date and save any texts, emails, letters, social media posts, etc. that document the date of separation, in case it’s later disputed.
You should also protect yourself by not waiting too long after separation to figure out the limitation period (i.e., how long after separation do you have to start the legal process?). A skilled family lawyer can identify deadlines and take steps to preserve your claim so you don’t lose the right to equal division. Your lawyer can also explain what you’re entitled to in a separation or divorce and help you resolve issues (e.g., negotiate and draft a formal separation agreement, guide you through the mediation process, and apply for a court order for property division).
Need Help Navigating Property Division?
There are so many unknowns during the transition from being married, to separated to divorced. A skilled family lawyer can guide you through these transitions, ensuring your legal rights and assets are protected.
Don’t wait too long after separation to get advice and make informed decisions. Your right to have assets and debt divided fairly may be lost forever if you wait too long. The team at Onyx Law Group in Vancouver welcomes you to reach out as soon as possible after your relationship ends—or even if you are still contemplating the end of your relationship. It’s never too early to get the information and support you need to protect yourself.
Frequently Asked Questions
The timing of property claims following a separation can significantly impact your legal rights. Below are answers to frequently asked questions regarding the time limits for claiming assets after separation.
Can We Divide Property Without Going to Court?
Absolutely. It’s open to both married spouses and unmarried spouses to negotiate a separation agreement that resolves property division. Dispute resolution processes such as mediation, arbitration, and collaborative family law can also be explored; they can be highly effective at achieving equitable distribution outside of court.
Does Moving Out Affect My Rights to Claim Property?
If you have the legal right to a share in the family home, leaving the family home will not destroy that right. It may, however, make it difficult to move back in if the need later arises. You should consider taking immediate steps to protect your interest in the family home or other property (e.g., an interim separation agreement, a certificate of pending litigation, a charge under the Land (Spouse) Protection Act).
How to Divide Assets in Separation or Divorce
The default rule is that family property and family debt are split equally when a marriage ends. Family property typically includes the family home (sometimes called the matrimonial home in other jurisdictions), bank accounts, retirement accounts (e.g., tax-free savings accounts, pension benefits, business interests, and other assets. Family debt includes all financial obligations incurred by one spouse or both spouses during their relationship (e.g., credit cards, mortgages, lines of credit).
Certain property—called excluded property in BC—does not have to be split equally, but any increase in the value of excluded property is divided equally. Examples of excluded property include property brought into the marriage/cohabitation by one spouse, an inheritance received by one spouse, and insurance proceeds (e.g., as a result of personal injury). Property acquired by one spouse after the separation date is also considered separate property.
Division of assets and debt is a complicated process. See here for more information on how to divide property and the net family property calculation process—or better yet, reach out to Onyx Law Group for advice tailored to your situation.
What if We Reconciled Briefly After Separation?
Section 83 of the Family Law Act addresses how periods of reconciliation can impact the determination of family property and family debt. You are not considered separated from your spouse if, within one year of separation, you live together for one or more periods totalling at least 90 days. If you’ve had periods of reconciliation in that first year that are less than 90 days, your original date of separation is the key date.
Can I Claim My Ex’s Retirement/Pension After Separation?
Pension plans are family property in BC. You may be entitled to a share of your ex’s pension plan, but it can depend on various factors such as whether you have a prenuptial agreement or marriage contract that says otherwise. Legal advice is strongly recommended, as the rules for valuing and dividing pension benefits are extremely complex.
Note that any pension credits under the Canada Pension Plan are treated differently from other types of pension plans. Spouses can apply to split CPP pension credits one year after separation, and there is no time limit to apply, unless your former partner dies, in which case you must apply within 36 months.
What Happens if We Separated Years Ago with No Agreement?
If you are legally married but separated from your spouse, and you don’t already have a divorce order or annulment, your right to bring a property division claim continues to exist, despite the passage of time. If, however, you were in a common law relationship, you might be out of time to bring a property division claim in court if you separated years ago and don’t have a separation agreement in place. In either case, you should never assume that you’re out of luck. Talk to a family lawyer at Onyx Law Group today about your situation and explore options for pursuing equitable distribution of marital assets.