Spousal Support: The Divorce Act vs The Family Law Act
When dealing with spousal support issues, understanding the jurisdiction is paramount. This involves knowing which law to apply — The Divorce Act (DA) or The Family Law Act (FLA). Here, we delve into these two statutes and how they affect the process of applying for spousal support.
The Divorce Act
The Divorce Act is a federal law that applies to married individuals who have divorced or are in the process of divorcing. According to the DA, "spouse" refers to two individuals who are married to each other. Once a divorce has been granted, any spousal support claim must be brought under the DA due to federal paramountcy.
The Family Law Act
On the other hand, the Family Law Act offers a broader definition of "spouse" and thus, a wider range of individuals can apply for spousal support under this Act. According to the FLA, the term "spouse" encompasses:
Two people who are married to each other or who have entered into a marriage that is voidable or void, with the person relying on this clause asserting any right in good faith.
Two people who are not married but have continuously cohabited for at least three years in a conjugal relationship.
Two people who are not married but are in a relationship of some permanence and are the natural or adoptive parents of a child.
It's important to note that once a divorce is granted, neither party can apply for spousal support under the FLA.
The Interplay between the DA and FLA
The relationship between these two Acts can lead to complex situations. For example, if one party commences a divorce application and claims spousal support under the DA after FLA proceedings have started, and the court has not yet adjudicated the FLA claim, the FLA claim is automatically stayed pursuant to s. 36(1) of the FLA.
However, a party may seek leave to lift this stay if, for instance, they believe the other party commenced the divorce application in bad faith. If spousal support has already been adjudicated under the FLA, the order remains in force until it is superseded by an order under the DA.
Additionally, if a party initiates an application for divorce without joining a claim for spousal support after a FLA proceeding has begun, both claims may proceed. Federal paramountcy is not engaged if neither party claims support under the DA.
In summary, understanding the nuances of jurisdiction in spousal support can be crucial in navigating the process efficiently and effectively. It's crucial to seek legal advice to fully grasp the implications of these laws and to determine the best course of action based on individual circumstances.
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