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Issues About "Family Property": Does a Transfer of "Excluded" Family Property From One Spouse to Another During the Course of the Relationship Make it "Included" Family Property?

Imagine the following scenario: 

  • Wife owns a home by herself prior to marriage. Sometime after their marriage, the wife puts the husband on the title to the home with the result that both parties now own the home as joint tenants. The parties then separate. Upon separation, the wife argues that the entire home should be "excluded" family property and should not be divided between the two parties because the wife owned the home prior to marriage. The husband argues that the placement of his on the name on title effectively transferred to him at least half of the property thus making it "included" family property and therefore should be divided between the two parties. Who is correct?

The answer is that the courts have been divided on this issue. 

REMMEM V. REMMEM

In the case of Remmem v. Remmem, 2014 BCSC 1552, the court found that the entire value of the home was "excluded" family property and used "tracing" rules to justify its decision.  See para 52 below: ....

PRESUMPTION OF ADVANCEMENT

In layman's terms, the "presumption of advancement" is a legal principle that essentially states that a transfer of property from one spouse to another is a gift to the receiving spouse to be owned by the receiving spouse.

WELLS V. CAMPBELL

However, in the case of Wells v. Campbell, 2015 BCSC 3, the court came to the opposite conclusion. The court found that the home was "included" family property and was subject to division between the parties. The court differentiated the case of Remmem above and emphasized that the finding in the case was limited to the facts of the case. See paras 36 to 38 below :..

Written by
Mark J. Chiu
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