Yes, Sometimes The Family Property Act is Unfair

 Much of a family law lawyer's time will involve defending The Family Property Act.

The FPA is the act that sets out the rules as to how a separated couple are to equalize their assets. They can opt out of the law by doing a Separation Agreement, but if they don't, the rules apply.

Some of the more common complaints I hear about The Family Property Act:

1. It's "no fault". 

The Act doesn't care if one spouse committed adultery, abandoned the other, was abusive or controlling. The assets and debts are to be accounted for and the net values equalized.

2. Ethics and morals play no part. 

Yes, your spouse can cheat on you and devastate the marriage and your family, but they still have a claim to half of your assets.

3. Savers are punished. 

Often marriages are made up of a spender and a saver. If at the end of the marriage one spouse has a large amount of investments from scrimping and saving their income, and the other spouse spent recklessly on entertainment or travel and has only debt, it's still all shareable. The saver loses half their savings, the spender gets credit for half their debt.

4. The date of separation. 

The Act requires a valuation of assets as at the date of separation. If your vehicle was worth $10,000 at the date of separation, you owe your spouse $5,000. If, by the time your case is settled and it's time to pay out the money, the vehicle is now only worth $6,000, you still owe your spouse $5,000. 

This can seem particularly unfair in situations when the financial markets plummet and investments are worth much less after separation.

5. Bankruptcy. 

After the spouses separate, they become akin to creditors. If the court orders that the wife owes the husband $50,000, he is a creditor and has the usual rights to pursue collection of his money. But, if the wife goes into bankruptcy the husband will have to get in line behind the rest of the wife's creditors and wait to see if he can collect anything.

6. Inherited monies. 

If you inherit money and then set it aside in an investment in your name alone, the Act allows you to claim those monies as non-shareable. However, if you put the money onto the mortgage on the jointly-owned home, or bought a vehicle for your spouse, or took a family vacation, there is no exemption to claim. If both spouses inherited money, but treated the lump sums differently, it can seem very unfair.