In a Divorce am I responsible for my ex husband or wife’s debt?
- In some circumstances yes. These include a spouse that incurs debts recklessly or in bad faith, a spouse that recklessly depletes the family property, and others listed below. In these types of situations your spouse may not get to deduct a portion of their debts when calculating the division of property. While generally the division of the difference between your and your ex’s property, which takes debts into considerations, is divided equally between the spouses, there are these very limited circumstances when the division of net family property is unequal.
When can I have an unequal division of property in a Divorce?
- The threshold of unconscionability under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of property in the circumstances must “shock the conscience of the court.
The Legal Requirements for Unequal Division of Property
- A spouse fails to disclose significant debts at the time of the marriage.
- A spouse incurs debts recklessly or in bad faith and that reduces his or her net family property.
- A significant part of a spouse’s net family property consists of gifts made by the other spouse.
- There is a reckless depletion of net family property.
- An equal division would be disproportionately large in relation to a period of cohabitation that is less than five years.
- One spouse incurred significantly more debt throughout the marriage in order to support the family.
- A written agreement between the spouses that is not a domestic contract.
- There are other circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of property.
Your Options
- Unified LLP can help you assess the strength of your case for unequal division.
- You can bring a court application for unequal division.
- You can negotiate an out of court property settlement.
