law 12 - (fourth unit) family + tort law

essential requirements of marriage

mental capacity, genuine consent, minimum age, close relationships, unmarried status

mental capacity

must fully understand what's happening (can't be sick, drunk, taken drugs)

genuine consent

must willingly agree to be married (can't be under duress)

formal requirements for marriage

issue marriage license/banns, performing marriage ceremony, establishing age requirements, registering marriage

assuming a spouse's name

can assume spouse's surname, assume a combo of your/partner's surname (hyphenated), keep your birth surname

prohibited relationships

a woman can't marry her father, son, brother/half brother, grandpa or grandson (and same thing for men but reversed)

nuclear family

mother, father and children living together (only, nothing else)

consummation

sexual relations after marriage

banns of marriage

when a couple decides to marry, there'll be an announcement at their place of worship, asking if there are valid reasons why they shouldn't be married

annulment

court order stating 2 spouses were never legally married in the first place

reasons for annulment

lack of essential requirement(s), legal defect in wedding ceremony, non-consummation of marriage (usually happens soon after marriage)

separation

partial dissolution of a marriage where the spouses live separate and apart

separation agreement

domestic contract that sets up terms/conditions of separation

what do separation agreements cover?

division of assets/property, support payments, child custody

divorce

process that legally ends a marriage

what is the person seeking the divorce called?

applicant

what is the other partner (not the one seeking divorce) called?

respondent

when is divorce used?

if a spouse wants to remarry

certificate of divorce

formal document saying marriage is formally dissolved

divorce act of 1968

gave couples 15 reasons for divorce (was controversial)

divorce act of 1985

only grounds of divorce is marriage breakdown, established if partners live apart for 1 year, adultery, or 1 spouse was physically/mentally abused

no fault divorce

allows spouses to end marriages without having to assign blame

domestic contract (prenups)

general term for a legal agreement that partners make for certain aspects of relationship

what do domestic contracts deal with?

division of property if a divorce happens, separation, or if a spouse dies

cohabitation agreement

gives unmarried people who live together the same rights married people have

divorce application agreement

where/when marriage took place, grounds for divorce, children's info, access to children, financial support for children/spouse, etc

custody

care/control of a child awarded by court

access

a non custodial (parent that doesn't have custody) parent's right to information of child/visits with child

interim custody order

temporary court order for custody of a child

what do judges use to settle family disputes

the best interests of the child principle

joint custody

care/control of child shared with both parents

shared parenting

arrangement where both parents have equal rights with child's care/custody)

mobility rights

custodial parent's right to move houses with the children (if it's reasonable/in the child's best interests)

division of property (6 steps)

list+calculate value of assets on date of separation, subtract value of gifts+inheritances from value of assets, subtract total debts on date of separation, list+calculate value of assets (minus debts) on date of marriage, subtract amount #4 from amount #3, deduct the lower net family property from the higher one (and divide difference by 2 to determine equalization payment)

how is the equalization payment paid out?

proceeds of selling home, transfering RRSP, loan

when would division of property be unequal

length of marriage (not married for long), length of separation (buying things after separation), date when asset was acquired (buying things just before separation), gifts+inheritances

who would get the matrimonial home in the division of property

both partners have an equal right to the proceeds if they decide to sell it (doesn't matter who's name is on the ownership papers)

how are family assets divided?

divided equally among both partners

what are non family assets

stocks, RRSP's, bonds

how are non-family assets divided?

not shared, unless there's proof the other person helped build it up

tort law

injuries done by 1 person to another's body/property/reputation + claims from serious accidents

plaintiff

the person (or people) filing the lawsuit

damages

money awarded to a plaintiff for harm/injuries

small claims court

court resolving civil claims between $5000 and $35000 (in bc)

balance of probabilities

standard of proof in civil cases (means "more probable than not", meaning the side with the more believable evidence wins)

examination for discovery

pre trial process to learn the other side's evidence (like disclosure in criminal cases)

5 types of cases heard in small claims courts

breach of contract, claims for minor accidents, damage to property, recovering property, unpaid bills/debts/wages/etc

7 types of responses to claims

defence or reply, payment into court, counterclaim, third party claim, out of court settlement, pre trial conference, default judgement

defence or reply

defendant prepares statement of defence (explain reasons why they disagree with plaintiff's claim)

payment into court

defendant pays plaintiff if they think they're entitled to some (not all) of the claim

counterclaim

defendant makes lawsuit against plaintiff for damages/relief

how do judges examine counterclaims

judge examines both claims at the same time, and decides who's at fault by what percent

third party claims

involves a 3rd party that the defendant thinks is responsible

out of court settlements

either party can offer to settle dispute instead of going to court (any point before trial)

pre trial conference

last chance for parties to resolve dispute before trial (by meeting with a judge who'll give a possible judgement)

default judgement

if the defendant doesn't reply to claim within time period, plaintiff is able to get amount claimed

class action lawsuits

single case brought on behalf of a group with a common grievance