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with property or pre-FLA proceedings are directed back into the FRA. As
stated by Court of Appeal in Halliday v. Halliday,15 s. 252 preserves the prior
regime as it concerns property division for any separation agreements finalized
before the FRA was repealed.16 Married couples seeking review of an
agreement made before the FLA was enacted, or seeking to continue family
proceedings started under the FRA, must proceed under the FRA.
WHAT ABOUT COMMON LAW COUPLES WITH PRE-FLA AGREEMENTS?
For common law couples, the roadmap is not as straightforward. The complexity
is further compounded by the new definition of “spouse” in the FLA.
Under the FRA, the definition of “spouse” had a temporal component: only
a “spouse” was eligible to seek property division and spousal support, and a
person ceased to be a “spouse” two years after a divorce was pronounced.17
The FLA defines a “spouse” as anyone who has been in a marriage-like
relationship for at least two years (this definition includes former spouses18)
and sets out express time limits for anyone who qualifies as a spouse to
bring a claim for property or pension division, or spousal support, and to
apply to set aside an agreement.19 The expansive FLA definition of “spouse”
created interesting questions for the courts in determining who was or was
not caught by the legislation.
In this regard, were persons who ceased to be spouses under the FRA and
separated prior to the coming into force of the FLA able to make a claim? In
2016, the Court of Appeal answered in the affirmative, interpreting s. 252 in
Newton v. Crouch20 and in Matteucci v. Greenberg.21 In both cases, the relationship
at issue straddled the FRA and the FLA.
In Newton, one common law partner began a claim before the FLA came
into force, and his former partner counterclaimed for equal property division
under the newly passed FLA. The Court of Appeal dismissed the
appeal from a decision allowing a claim for relief to be made under the FLA,
confirming that while the definition of spouse is “prospective”,22 it could
apply to events that occurred prior to the date on which the FLA came into
force. As long as a person met the definition of “spouse” at some point in
time—even prior to the FLA—by having lived in a marriage-like relationship
with someone for over two years, he or she is entitled to claim relief
under the FLA, provided the claim is brought in time.
In making this point, the court reiterated that a spouse is not limited to
the remedies available to that person before the FLA came into force. As
expressly indicated in the statute, the new bundle of rights under the FLA
is in addition to, and not in substitution for, rights under equity (such as
unjust enrichment remedies) or any other law (arguably the FRA).23