In Part 2 of this series, we looked at what factors the court considers when ordering an interim distribution of family property. In addition to the legal text described in that article, the court has to be satisfied that the spouse applying for an interim distribution has a reasonable claim to the family property that is the subject of the family law case.
On an interim application for distribution of family property, the court will not conduct a full analysis of the merits of the case (this is left to the trial judge or other adjudicator as the case may be). However, at this stage, the spouse applying for the distribution does have to make out a prima facie or preliminary case for entitlement.
This can become more difficult to prove when the spouses have entered into a Marriage Agreement or Separation Agreement that on its face would disentitle the spouse making the application from further property division. In these cases, the application for an interim distribution will only be successful where that spouse has challenged the validity of the agreement in the family law case. This challenge must have been pleaded in the originating documents that started the case (i.e. Notice of Family Claim or Counterclaim). The judge will then consider the strength of that spouse’s claim for having the agreement set aside. Again, without getting into an in depth analysis of the merits of the case, the judge will consider whether a reasonable claim has been set out.
Lawyers at Hart Legal were successful in obtaining an interim distribution in a case where three family agreements were signed, two of which would have precluded our client from any entitlement to family property: see Atterby v Rich, 2019 BCSC 869. We were successful by making the right legal arguments and by establishing that our client had a reasonable claim for having the family agreements set aside if the case went to trial.
To read more about how to set aside a Marriage Agreement or Separation Agreement that you think is unfair, please visit: https://hart-legal.com/divorce/your-marriage-is-a-battlefield/
To find out how HART Legal can help you succeed in a claim for an interim distribution, meet with one of our lawyers for a free consultation. Please contact Hart Legal.