The short duration of the marriage (or common law relationship) is one of the factors in favour of an unequal division of family property. In Banh v. Chrysler 2022 BCCA 74, the BC Court of Appeal squashed the trial judge’s unequal division of a property that he husband brought into the relationship and the value of which increased $750,000 during the relationship. Instead, the Court of Appeal divided the property equally.
In this case, the husband and wife were married for exactly two years and cohabited for 21 months. During this time, the property that the husband had brought into the marriage had a modest gain, and then had a more significant gain between separation and trial. The trial judge ordered an unequal division in favour of the husband, so that he got all of the gain in value post-separation. The wife appealed. As above, the Court of Appeal allowed the appeal and ordered an equal division instead.
In its reasons of judgement, the Court of Appeal distinguished this particular case from some of the other, earlier cases where an unequal division of property was ordered in marriages of similar lengths. The key distinguishing factor is that in this case, the property in question was a rental property and the husband has already received most of its post-separation rental income, so that an unequal division in his favour is unwarranted:
[62] In any event, Williams, Davie, Yeh and Chapman all involved an unequal division of family property that was achieved by varying the date of division of the family property, reapportionment or both. In all cases, the relationship was short and the spouse that made greater financial contributions during the relationship received a greater share of family property. In all cases, the primary family property at issue was excluded property owned by the spouse who made the greater financial contributions. In all cases, the parties lived together in the excluded property.
[63] The key distinguishing feature in the present case is that Mr. Banh’s excluded properties were rental properties and he was compensated for his time and expenses associated with managing and maintaining the properties following the parties’ separation. There was no reason to further compensate him for his contributions through an unequal division of family property.
[64] Can the two‑year marriage of the parties justify the judge’s decision to disentitle Ms. Chrysler to any of the post‑separation growth in the value of Victoria Properties A and B? In my view, the answer is no. Two years is not so compellingly short that the duration of the relationship alone justifies an unequal division of family property.
This decision is a reminder that family law is highly contextual in nature, and sometimes one seemingly small point of a case can be the difference between a win and a loss. Talk to us today to see how we can find this point about your case.