A recent court case from British Columbia made headlines because it involved a sharing of an unusual family asset — sperm.
A same-sex couple had stored donor sperm at a fertility clinic. When the couple split, they had 13 donor sperm vials still in storage. They entered into a separation agreement addressing their joint property but it did not mention the sperm.
Later, one of the partners wanted to use the donor sperm to conceive a child in a new relationship. The former spouse wanted it destroyed. They had to refer their dispute to the court for a decision.
In spite of their rather unique nature, the court found that the sperm vials should be treated as family property and should be divided. Everyone from the donor, to the sperm bank, to the clinic had treated the donor sperm as property. Once the couple purchased the sperm, it was their joint property to be used for their benefit.
Because the couple had decided to divide all of their assets equally, an equal division of the sperm vials was consistent and appropriate.
There are other examples of when the basic law of equal sharing of family property can seem inappropriate.
One is with respect to family pets. Many spouses consider their pets to be akin to children. If any of those couples separate, they will sometimes make arrangements for custody and visitation, even pet support for food and vet bills. But they will be hard-pressed to find a judge who will order such a thing. Most times, courts will treat pets like assets. Who is the legal owner? Does the pet have any fair market value?
The engagement ring can also be a difficult asset to bring into a family property dispute. On the one hand, it can be an asset with a substantial value. Although it is usually purchased before marriage and could be considered "pre-acquired" and therefore not shareable, it is normally bought in "specific contemplation of marriage" and would in fact be shareable. It can be considered a gift and so not shareable, but is usually a gift from one spouse to the other and so would be shareable. Not surprisingly, most couples do not bring the engagement ring into the separation negotiations.
Professional licences and post-secondary degrees are also hard to deal with in a separation. If a spouse worked to support his family while his wife attended medical school and earned a degree, only to then end the marriage, is the medical degree shareable? Is a husband’s law degree shareable?
They cost a great deal of money to get, and they allow the owner of the degree to earn a great deal of money for years to come. They do not however have a fair market value, as they cannot be sold.
The law requires family assets to be shared based upon their fair market value, if any.
Similar to degrees, other types of income-earning assets such as corporate shares are sometimes dealt with inconsistently by the courts. The asset will allow a spouse to earn large sums of money over the next several years, but how can that future value be assessed for the current day’s fair market value? And what if that spouse pays support on that income? Sharing the asset’s future value and its income could be "double-dipping."
It is examples like these that show why family law can be so interesting.
» Jodi Wyman is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition May 19, 2012