Property Valuation: - ‘No Reasonable Prospect of Reconciliation’ and ‘living separate and apart’
Introduction
Property values play an instrumental role in settling matters during divorce proceedings. This crucial aspect of property assessment is often overlooked but has the potential to significantly impact the outcome of a marital separation. In the context of family law, understanding how, when, and why property is valued is not just advantageous, but pivotal. This article aims to delve into the intricate details of property valuation in family law, focusing particularly on the guidelines laid out by Section 4(1) of the Family Law Act, R.S.O. 1990, c. F.3.
The Importance of Property Valuation Dates
One of the key elements to understand in the context of property valuation is the valuation date. The date on which a property is valued can have a profound impact on the amount of the equalization payment that is to be made. According to the Family Law Act, the valuation date is determined by the earliest of five possible dates: the date of separation, the granting of divorce, the declaration of marriage nullity, the commencement of an application based on improvident depletion, or the day before the death of a spouse. Predominantly, in many family law cases, the date of separation serves as the common valuation date. This is due to the fact that it is usually the first of the five dates to occur.
Determining the Date of Separation
The date of separation is a critical juncture in the valuation process. However, pinpointing this date can sometimes be a complex task due to various factors and considerations involved. Two key elements are considered when establishing the date of separation: the factual separation of the spouses and the absence of any reasonable prospect of cohabitation.
Even if spouses continue to live in the same house, they could be legally considered as separated if there is a clear and established intention to destroy the matrimonial consortium or to reject the marital relationship. This intention could be demonstrated through various behavioral changes and patterns. Sexual relations, the level of communication between the spouses, participation in joint social activities, and meal patterns can all be considered as indicative factors of a couple's marital status.
Living Separate and Apart vs No Reasonable Prospect of Cohabitation
The court differentiates between two scenarios: 'Living Separate and Apart' and 'No Reasonable Prospect of Cohabitation'. The former encompasses factors like physical separation and withdrawal from marital obligations. This could be a situation where the spouses are living under the same roof due to economic necessity, but have effectively ceased to fulfill their marital obligations.
On the other hand, 'No Reasonable Prospect of Cohabitation' is a separate concept that focuses on the likelihood of the spouses resuming their cohabitation. The court in this scenario looks for more than just wishful thinking or residual affection; they seek concrete evidence that a reasonable person, given the circumstances, would believe in the possibility of the spouses resuming cohabitation.
Conclusion
In family law, understanding the nuances of property valuation is not just important, but crucial. The date of valuation can significantly impact the equalization payment, and thus, it becomes essential for separating couples to fully comprehend their specific situation. Determining the exact date of separation and differentiating between 'Living Separate and Apart' and 'No Reasonable Prospect of Cohabitation' can provide much-needed clarity in property valuation during divorce proceedings. By doing so, couples can ensure a fair and equitable division of property, thereby simplifying the overall process of separation.
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