Iatathrona Raotiientahtsera (Couples Property/Akwesasne Matrimonial Property Law)

SUMMARY

BACKGROUND

The Indian Act regulates the distribution of property in relation to lands on reserve, but has no rules for the distribution of property on a marriage breakdown.

•Since 2005, the Federal Government has been engaged in developing a matrimonial property law, to be imposed on First Nations communities. This proposed bill allows First Nations to develop their own law but sets a high voting standard for approval.

•If no First Nation law is passed, at this voting standard, the rules for matrimonial property disputes in the Federal legislation will apply,

•The Bill establishes rules for the division and possession of property on reserve and gives jurisdiction to the Provincial Courts to hear disputes.

Presently, Bill S-2 “Family Homes on Reserve and Matrimonial Interests or Rights Act” was introduced to the Senate on September 28, 2011. There have been a number of concerns by First Nations communities, especially since there has been limited consultation with First Nations’ government.

As described below Akwesasne has worked on development of its own Matrimonial Property Law.

In 2006, the Mohawk Council of Akwesasne established a Working Task Group (MCR2006/2007-#209) to develop a plan and to begin developing draft legislation. As well, Mohawk Council of Akwesasne passed MCR 2010/2011-#162 making the issue of matrimonial property law a priority..

The Working Task Group completed a proposed draft Iatathrona Raotiientahtsera (Couples Property/Akwesasne Matrimonial Property Law) in February 1, 2013. After the legal review, the proposed draft law is being presented to Mohawk Council of Akwesasne at the March 6, 2013 General Meeting for acceptance-in-principle. If accepted-in-principle, the proposed law will be distributed to all household members under the jurisdiction of Mohawk Council of Akwesasne.

HIGHLIGHTS OF THE IATATHRONA RAOTIIENTAHTSERA (Couples Property/Akwesasne Matrimonial Property Law)

• The best interest of the child (of the relationship) is the most important element in the proposed law when considering possession of the matrimonial home in a relationship breakdown.

• Application of the proposed law is when a breakdown or dissolution of a marriage or common-law relationship occurs between two Members and the law considers the division of legal interests regarding on-reserve property.

• Applications will be heard by Mohawk Court. By contrast Under Bill S 2 matters would be heard by provincial courts

• The person making the application to the court will have to make an application to Mohawk court within one year of separation.

• The law will address division of the matrimonial property when there is a separation. The law includes a right to acquire possession of the matrimonial home, based on Akwesasne values before the court.

• Non-member spouses cannot acquire possession or an interest in Akwesasne lands.

• The law will recognize any Domestic Agreements (agreements made before or during the relationship).

• Common-Law Relationship “means the situation where two people have cohabitated together in a marriage-like situation for at least five (5) years.”

The proposed IATATHRONA RAOTIIENTAHTSERA (Couples Property/Akwesasne Matrimonial Property Law) does not:

•Assign or dispute title to the land

•Deal with Spousal support

•Deal with Child support

•Deal with Child custody

•Deal with matters to determine Membership

•Deal with lands off the territory of Akwesasne

•Deal with personal property (which is defined as anything other than land or an interest in lands and includes but is not limited to furniture, vehicles, boats, livestock, household goods, clothing, jewelry, money, bank accounts, shares, wages, or debts owed to an individual.

CONCLUSION

The Akwesasne Matrimonial Property Law protects the issues of families, children and community when there is a marriage breakdown. The issues will be determined by the Akwesasne Mohawk Court. Otherwise, if Federal Bill -2 is passed ( and Akwesasne does not pass an Akwesasne Law meeting the high voting approval standard in the Bill) issues concerning division and possession of matrimonial property on marriage breakdown will go to Provincial Court and be determined under rules in that Bill.