Family Property

Provincial laws about dividing family property apply to couples living on reserve in some cases but do not apply to reserve land or a building on reserve land.

The Indian Act does not have rules about dividing interests in reserve land when a couple splits. There is a federal act called the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) that applies in some cases. But First Nations can make their own laws about dividing interests in reserves when a couple splits. Then FHRMIRA does not apply. They can do this under:

Self-Government Treaty

If a First Nation has signed a Self-Government Treaty, they can pass their own laws about family property. In that case, the rules in the federal Act will only apply if:

• the First Nation’s land is still a reserve under the Indian Act AND
• the First Nation and the Minister of ISC agree that the rules will apply

Land Code

First Nations with Land Codes have the power to enact their own laws about family homes and other property on the reserve. Laws can cover:

• who has the right to live in the family home
• how the value of the home, reserve land or buildings on reserve will be divided if a couple separates
• how long a couple must live together for the rules to apply

FHRMIRA

A First Nation Council can create their own rules under this Act. They  must first notify the government that they want to do this. The council then drafts rules. After that, there must be a community vote.

Before the vote, the council must provide information to the community to let them know they can vote and what laws they are proposing. They must publish the date, time and place of the vote. At least 25% of the members, living on or off reserve, must take part in the vote for the vote to be valid. If the majority of members who take part vote in favour, the laws come into effect.

FHRMIRA is the federal law that applies on reserves if a First Nation does not have its own laws. It applies to any interest in reserve land and buildings on reserve land. It applies to married couples and couples who have lived together for at least one year. It only applies if at least one member of the couple is a First Nation Member or defined as an Indian under the Indian Act.

The Act covers:

• the rights of couples to their family home on a reserve
• dividing interests in reserve land and buildings on reserves when a couple splits or one of them dies