The division of assets, including family debt and property, is one of the key matters that must be resolved during a divorce. While spouses may fairly divide their assets, the Supreme Court could order that the assets be unequally divided in certain situations.
An order of unequal division occurs when the usual method splitting up assets would create unfair circumstances for one of the spouses. This could be the case if the of family debt and property are divided equally between both spouses or if benefits are divided normally under Part 6 of the Family Law Act.
However, several factors are considered before the court orders an unequal division of property, including how long the spouses were married, whether one spouse contributed to the other’s career or potential for a career, and the terms of any settlement the spouses have. Other factors that are weighed are whether one spouse caused a substantial increase or decrease in family debt or property value that exceeds market trends and whether one spouse greatly reduced the family property.
The court also considers whether their debt was acquired during the normal course of their marriage and whether each spouse can pay part of the debt if it exceeds the value of their family property. The tax liability that a spouse may incur from selling or transferring property or from the order itself is also a consideration, along with other factors that could result in unfairness.
To begin the process for the Supreme Court to consider whether an order for unequal asset division is necessary, one of the spouses has to file an application. This could be done after the divorce petition is filed and the spouses begin to negotiate how their family debt and property will be divided. The applicant spouses may retain lawyers for help when seeking unequal division orders.