Not all of us have the financial wherewithal to stay out of debt. Sometimes we simply want more then we earn or just want to impress our neighbours, friends or our spouse and so we spend more than we are capable of paying back, or alternately make financial decisions that lead to disasters. Under the circumstance we have to understand how it would affect our better half, both in terms of legal ramifications as well as the emotional toll on the marriage itself. While on his or her part, the spouse has to understand the tremendous trauma you are going through when you are on the verge of declaring bankruptcy and losing all of your property.
Legal ramifications
If you were to file for bankruptcy in Canada, just remember that doing so will ‘not ‘directly affect your wife, husband or common law partner. This is primarily due to the fact that your loans and bills are essentially ‘your” loans and the “In sickness and in health till death do us part” bit of your marital vows does not make your spouse liable to pay your debts. Once you declare bankruptcy your personal debts would be recovered from you through your property and your spouse will not be legally responsible for them.
It is however, a fairly common misconception that spouses are somehow responsible for each other’s debts. This is quite simply not true in spite of collection agents telling you that if you do not ‘pay up’ they will approach and extract the required amount from your spouse. This is nothing but a blatant ‘scare tactic’. You and you alone are wholly and solely responsible for your own personal debts.
However there is an exception to this cardinal rule and that is if it’s a ‘joint loan.’ Or alternately if your wife, husband or common law spouse has signed on as either a guarantor or a co-signee to the loan in which case he or she is also legally responsible for the debt as well. The loan may be either a bank loan or a credit card bill issued to the same account. However, in case of a supplementary credit card issued to him or her under your instructions and on the basis of your personal account than you will be responsible for paying the bills accrued on that particular card.
Movable and immovable assets
Quite apart from debt, once bankruptcy has been filed, a key problem (that a married couple may potentially face when either one of the spouses becomes insolvent) is the evaluation of who holds which assets. If your spouse holds property in his or her name only than it will not become part of bankruptcy proceedings. For example if your husband’s home is in his name only, then it would be party to bankruptcy proceedings provided you have filed for bankruptcy rather than him. However, if the property is in his name and moreover, he has become insolvent and filed for bankruptcy than he might lose the property, even though you would also be living in the same house.
