AboutMelanie Nathan Expertise I AM ACCEPTING QUESTIONS FROM PEOPLE IN CALIFORNIA ONLY OR QUESTIONS REGARDING CALIFORNIA.
As a Mediator with a high settlement record, I am able to answer questions about negotiation, strategy, mediation, how to choose a divorce lawyer, choices and paths to take when embarking upon a family law matter. Also able to give extensive and creative co-parenting solutions. Custody, division of property, child support, spousal support, divorce process and procedure, in a neutral and non advisory fashion.
I am unable to give direct legal advice on the internet and hope that all answers are viewed in the context of the limitations of this type of forum. I will endeavor however to provide an informative answer that is educational by nature. I have developed a unique form of Family Law Mediation and document assistance and provide my services through the Company I founded in 2000, PRIVATE COURTS.
I utilize my experience as a divorce coach. Most people do not know what this is and you can read about it on my website at: http://www.privatecourts.com/divorcecoaching.html
I draw your attention to this because it may be a good idea to recommend this newish modality to persons going through divorce.
Please do not ask questions if you do not intend checking to see them. Also rating the answers is helpful to the expert and to other questiners. Thanks for your understanding.
PLEASE IF YOU ASK A QUESTION COME BACK AND CHECK THE ANSWER - EXPERTS TAKE A LOT OF TME DOING THIS SERVICE AND ITS DEMORALIZING IF YOU DONT READ THE ANSWERS...THANKS.
Experience Twenty five years as a lawyer, business owner, and mediator.
Organizations VP on Board of Fair Housing of Marin. (FHOM) Various ADR Panels and membership organizations. See website fr details www.privatecourts.com
LGBT - www.divorcemediator.us
Advocacy and blogging www.oblogdeeoblogda.wordpress.com
I live in the province of British Columbia, Canada. I was wondering Melanie Nathan, if you could please help me out with these questions that I have. I hope that you can. I would most gratefully appreciate it. My questions are;
If two people get legally married in a legal ceremony however, the two people do not ever reside in the same residence, nor share any common assets nor property and they both keep there original surnames with only a sexual interaction that goes on on a regular basis as the only grounds to consider this a real marriage (of some sort or another) if the one party that has a much lower assets and income level than the other, files for a divorce, is there any chance of making any kind of financial claim of any kind on the other person that would stand up in court? I think the obvious answer would be "no" however, I thought that I should get some competent legal advise on this question. The person with the much lower income and assets would also be the man (if that makes a difference). Does the law vary much in this regard from state to state, province to province? Do you know?
My second question is this; In regard to the two people in the described above situation, would this situation qualify for an annulment even though the two people have been married for two years under these circumstances?
I eagerly await your reponces. Thank-you very much for your kind attention to these questions.
Sincerely,
Barrie
Answer Hi Barrie, First off, I have had no experience at all in the Canadian Law as I am here in the USA. But what I can tell you is the following:-
Any legal system had statutory law - that which is made by government and then case law (called precedents) which backs up the written law and also interprets it. Every situation has the ability to be challenged, because of precedent and sometimes your case can be unique and become precedent. That said the ultimate person to give advice would be an attorney in your province going over all the facts to see where you fit in.
That said, I did look up what laws apply to BC and came up with this as the statutory law; however remember I don't know how to access the cases that interpret this and only a lawyer there can help you with that.
If you read the code, then you will certainly educate yourself on this. remember there is never a direct "no" because every case is like a fingerprint with its very own unique nuances.
Part 5 — Matrimonial Property
Equality of entitlement to family assets on marriage breakup
56 (1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset on or after March 31, 1979 when
(a) a separation agreement,
(b) a declaratory judgment under section 57,
(c) an order for dissolution of marriage or judicial separation, or
(d) an order declaring the marriage null and void
respecting the marriage is first made.
(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common.
(3) An interest under subsection (1) is subject to
(a) an order under this Part or Part 6, or
(b) a marriage agreement or a separation agreement.
(4) This section applies to a marriage entered into before or after March 31, 1979.
Declaratory judgment
57 On application by 2 spouses married to each other or by one of the spouses, the Supreme Court may make a declaratory judgment that the spouses have no reasonable prospect of reconciliation with each other.
Family asset defined
58 (1) Subject to section 59, this section defines family asset for the purposes of this Act.
(2) Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset.
(3) Without restricting subsection (2), the definition of family asset includes the following:
(a) if a corporation or trust owns property that would be a family asset if owned by a spouse,
(i) a share in the corporation, or
(ii) an interest in the trust
owned by the spouse;
(b) if property would be a family asset if owned by a spouse, property
(i) over which the spouse has, either alone or with another person, a power of appointment exercisable in favour of himself or herself, or
(ii) disposed of by the spouse but over which the spouse has, either alone or with another person a power to revoke the disposition or a power to use or dispose of the property;
(c) money of a spouse in an account with a savings institution if that account is ordinarily used for a family purpose;
(d) a right of a spouse under an annuity or a pension, home ownership or retirement savings plan;
(e) a right, share or an interest of a spouse in a venture to which money or money's worth was, directly or indirectly, contributed by or on behalf of the other spouse.
(4) The definition of family asset applies to marriages entered into and property acquired before or after March 31, 1979.
Excluded business assets
59 (1) If property is owned by one spouse to the exclusion of the other and is used primarily for business purposes and if the spouse who does not own the property made no direct or indirect contribution to the acquisition of the property by the other spouse or to the operation of the business, the property is not a family asset.
(2) In section 58 (3) (e) or subsection (1) of this section, an indirect contribution includes savings through effective management of household or child rearing responsibilities by the spouse who holds no interest in the property.
Onus of proof
60 The onus is on the spouse opposing a claim under section 56 to prove that the property in question is not ordinarily used for a family purpose.
Marriage agreements
61 (1) This section defines marriage agreement for the purposes of this Part and this definition applies to marriages entered into, marriage agreements made and to property of a spouse acquired before or after March 31, 1979.
(2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
(a) management of family assets or other property during marriage, or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement, or an amendment or rescission of a marriage agreement, must be in writing, signed by both spouses, and witnessed by one or more other persons.
(4) Except as provided in this Part, if a marriage agreement is made in compliance with subsection (3), the terms described by subsection (2) (a) and (b) are binding between the spouses whether or not there is valuable consideration for the marriage agreement.
(5) A minor who has capacity to marry has, with the prior consent of the Supreme Court, capacity to enter into a valid marriage agreement.
(6) If a minor who has capacity to marry has purported to enter into a marriage agreement without the consent required under subsection (5), the Supreme Court may at any time order that the marriage agreement is binding on and is for the benefit of the minor.
(7) In a marriage agreement, a dum casta provision that applies if the spouses are living separate and apart is void.
(8) A provision of a marriage agreement that is void or voidable is severable from the other provisions of the marriage agreement.
(9) If a marriage agreement provides that specific gifts made to one or both spouses are not disposable without the consent of the donor, the donor is deemed to be a party to the marriage agreement for the purpose of enforcement or amendment of the provision.
Canada Pension Plan
62 A marriage agreement or other written agreement between spouses entered into on or after June 4, 1986 may provide that, despite the Canada Pension Plan, there be no division of unadjusted pensionable earnings under that Act.
Obligation to support spouse
89 (1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following:
(a) the role of each spouse in their family;
(b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other;
(c) custodial obligations respecting a child;
(d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves;
(e) economic circumstances.
(2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse.
That said if there is going to be any dispute or claim of any kind, please find a mediator who will help reach an amicable settlement before you spend tons of money on litigation. Also PLEASE get at least one quick legal consult with a separate attorney to understand your exact position, before any mediation session.
Sorry I could not give you a mre direct answer, but that is the nature of law coupled with the fact that I am not familiar with Canadian law, per se, just with how your system works. Good luck and I hope all goes well. Melanie Nathan, Private Courts, California
I received your second question and there is always an opportunity for annulment; I do not know your relevant law but would imagine it to be on the site that I sent you. In most countries the entire set of facts for example the reason and intent behind your marriage, why you lived apart, was the marriage based on fraud- all sorts of questions underlying the facts will be relevant. Good luck- definately call a local attorney because this is an unusual and complex situation.
Barrie, being new on all experts, I was exploring and notice jeff's answer to your questions. I think the statute he is quoting has been used out of context. It is one that applies to a situatiob of certification of a religious marriage into a civil marriage and then it gives the requirements. I dont see where it pertains to annulment per se. Please be very careful in your interpretation it is really not that simple and I dont believe its applicable in your situation, unless I misread your question. SO please please see a lawyer locally before you make any decisions or moves based on the advice you are getting from this site, Best Melanie
