The Presumption of Advancement as an “anachronistic legal
principle”
In the recent decision of H.C.F. v. D.T.F. 2017 BCSC 1226, Mr.
Justice Voith, in his lengthy (70pg) decision, provides an excellent overview of
recent case law on the issue of division of property including excluding property. He also provides commentary on the
intersection between the law and consistency with social change. The Honorable
Judge examines the legislative intent behind the FLA, including the reasons for
the expanded definition of spouse, which was specifically intended to include
same sex couples. His Lordship’s thoughtful and logical analysis paints his clear views on the presumption of advancement as an
outdated concept, which, should not be allowed to continue, as he says, “in the
context of legislation that was intended to recognize and reflect the broader
and changed nature of relationships in present day society.” He says at paragraph 149, “The ongoing
application of the presumption of advancement under the FLA would mean that of
these various potential forms of relationships, within which all partners are “spouses”
for the purposes of the FLA, the only subset of relationship to which the
presumption of advancement would apply would be a gift from a man to a woman in
a traditional marriage. “ This being a
result he calls “incoherent”.
Get a coffee, sit down and read it.
It’s long but it's an essential and
important case.
