Pensions and Divorce
Pension Divorce or Divorce and Pension Plans can get tricky.
Lets look at a specific case involving divorce and a pension plans...
a decision by the Supreme Court Of Canada.
John and Eileen were married in 1994.
John, a corporate executive, was then 50 years old; Eileen, a secretary, was half his age.
The couple had no children.
A few months ago, Eileen filed for divorce after falling in love with...
and intends to marry a man she met on an Internet dating site.
John, who has worked for the same company for three decades, is a participant in his employer's pension plan.
Now 64 years old, he wants the Court to exclude the pension plan from the partition of the family patrimony on the grounds that if his pension plan were to be divided, he would have to postpone his retirement in order to rebuild his pension funds.
Eileen, on the other hand, is still young enough to build her own pension plan by the time she reaches retirement age.
He also feels it would be unjust since Eileen is the one who committed adultery and filed for divorce.
Unfortunately for John, his arguments will fail, according to a recent decision by the Supreme Court of Canada which reversed a judgment by the Quebec Court of Appeal.
The family patrimony is comprised of specific property, including benefits that have accrued to a spouse during the marriage under a public or private pension plan.
When a marriage dissolves, the family patrimony is divided equally between the spouses unless one of them renounces his or her rights, or the court orders an unequal division where, according to the Civil Code "[equal partition] would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them".
The Supreme Court held that the injustice referred to in the Civil Code must result from a spouse's financial misconduct and not from the application of the law.
In the eyes of the law, marriage is an economic endeavor to which both spouses are bound to contribute as best as they can.
Either spouse may make his or her contribution by his or her activities within the home.
Their respective contributions are presumed to be equal, which underlies the principle of equal partition of the family patrimony upon dissolution of the marriage.
A spouse who has not contributed to the marriage in either property or services has violated the economic contract upon which marriage is founded, and he or she risks being deprived of some or all of the family patrimony.
The duration of the marriage has an impact on the economic partnership, as does financial waste or mismanagement of property.
The concept of "bad faith" is economic, not moral, in nature; any misconduct ascribed to one of the spouses must be analyzed from the standpoint of its impact on the family patrimony and must therefore be financial in nature.
The unequal nature or amount of the spouses' contributions is not a cause of injustice.
It is to be expected that the spouse with the higher income will finance a larger share of the couple's assets.
The fact that Eileen committed adultery and chose to leave the marriage is irrelevant in dividing the family patrimony.
It would be a different matter entirely if she had squandered thousands of dollars on cocaine or at the casino.
As for the age difference and the fact that John is almost of retirement age, the Supreme Court stated that this is a foreseeable consequence when one marries someone who is much younger.
Eileen's much younger age cannot be held against her.
The loss of a portion of his pension earnings, which John sees as an injustice, results solely from the application of the law.
The loss cannot be remedied without expressly disregarding the law and refusing to apply it.
This concludes my free legal tip on Pension Divorce
Lets look at a specific case involving divorce and a pension plans...
a decision by the Supreme Court Of Canada.
John and Eileen were married in 1994.
John, a corporate executive, was then 50 years old; Eileen, a secretary, was half his age.
The couple had no children.
A few months ago, Eileen filed for divorce after falling in love with...
and intends to marry a man she met on an Internet dating site.
John, who has worked for the same company for three decades, is a participant in his employer's pension plan.
Now 64 years old, he wants the Court to exclude the pension plan from the partition of the family patrimony on the grounds that if his pension plan were to be divided, he would have to postpone his retirement in order to rebuild his pension funds.
Eileen, on the other hand, is still young enough to build her own pension plan by the time she reaches retirement age.
He also feels it would be unjust since Eileen is the one who committed adultery and filed for divorce.
Unfortunately for John, his arguments will fail, according to a recent decision by the Supreme Court of Canada which reversed a judgment by the Quebec Court of Appeal.
The family patrimony is comprised of specific property, including benefits that have accrued to a spouse during the marriage under a public or private pension plan.
When a marriage dissolves, the family patrimony is divided equally between the spouses unless one of them renounces his or her rights, or the court orders an unequal division where, according to the Civil Code "[equal partition] would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them".
The Supreme Court held that the injustice referred to in the Civil Code must result from a spouse's financial misconduct and not from the application of the law.
In the eyes of the law, marriage is an economic endeavor to which both spouses are bound to contribute as best as they can.
Either spouse may make his or her contribution by his or her activities within the home.
Their respective contributions are presumed to be equal, which underlies the principle of equal partition of the family patrimony upon dissolution of the marriage.
A spouse who has not contributed to the marriage in either property or services has violated the economic contract upon which marriage is founded, and he or she risks being deprived of some or all of the family patrimony.
The duration of the marriage has an impact on the economic partnership, as does financial waste or mismanagement of property.
The concept of "bad faith" is economic, not moral, in nature; any misconduct ascribed to one of the spouses must be analyzed from the standpoint of its impact on the family patrimony and must therefore be financial in nature.
The unequal nature or amount of the spouses' contributions is not a cause of injustice.
It is to be expected that the spouse with the higher income will finance a larger share of the couple's assets.
The fact that Eileen committed adultery and chose to leave the marriage is irrelevant in dividing the family patrimony.
It would be a different matter entirely if she had squandered thousands of dollars on cocaine or at the casino.
As for the age difference and the fact that John is almost of retirement age, the Supreme Court stated that this is a foreseeable consequence when one marries someone who is much younger.
Eileen's much younger age cannot be held against her.
The loss of a portion of his pension earnings, which John sees as an injustice, results solely from the application of the law.
The loss cannot be remedied without expressly disregarding the law and refusing to apply it.
This concludes my free legal tip on Pension Divorce
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