Westaway Law Group can:
- Draft a Spousal Real Property (SRP) in consultation with a First Nation;
- Draft subsequent policies, regulations and rules;
- Provide legal advice on the implementation of the above;
- Help implement a tribunal;
- Provide legal advice to the tribunal; and
- Act as lawyers for those with family law or real property issues.
What is a Spousal Real Property Law?
An SRP law allows a First Nation to exercise jurisdiction over land and family law matters on their reserve. An SRP law can complement a First Nation’s traditional laws and practices. It also clarifies important matters, such as the how land is dealt with after the breakdown of a marriage. It also promotes fairness, rights and remedies, without discrimination, and allows for community-based dispute resolution. Lastly, it will balance individual rights with the collective rights of the First Nation.
Why should we enact an SRP law?
The Indian Act is silent on matrimonial real property. If a First Nation has a Land Code, they are required to enact an SRP in compliance with the First Nations Land Management Act. Though Land Codes often provide for some interim property rules to protect spouses, a more thorough and comprehensive law is ideal so there are no gaps in the legislation that could leave members without protection.
An SRP Law helps to…
- Protect individuals on reserves during and after a conjugal relationship;
- Balance individual rights with the collective rights of the First Nation in relation to reserve lands;
- Protect the best interests of the child;
- Allow spouses to make agreements about their property;
- Ensure alternative dispute resolution is used as much as possible;
- Allow children to reside in the family home even after a divorce;
- Resolve issues through community-based solutions;
- Complements the First Nation’s laws and practices;
- Protect individuals in situations of family violence; and
- Ensure spouses have an option for resolving matrimonial real property disputes in-house without having to go through the Courts.
Where will the SRP Law apply?
Generally, an SRP Law only applies to family homes and spousal real property on reserve and only where at least one of the partners (either a spouse or common-law partner) is a member of the First Nation.
Who will enforce the SRP Law?
Generally, provincial courts will enforce the SRP Law. However, First Nations can create their own tribunal or court to hear and decide matters under their SRP Law. This allows for greater self-determination and self-governance.
If you are interested in enacting an SRP Law in your community, contact us to learn how Westaway Law Group can assist you.