Authors: Aaron Vogel, Katrina Wagner
When a married couple divorces in Alberta, each spouse is entitled to a share of their matrimonial property pursuant to the Matrimonial Property Act, RSA 2000, c M-8. The legislation provides a framework for dividing matrimonial property between spouses. The court is granted a broad discretion to fashion a matrimonial property order based on a number of factors. Generally speaking, spouses will equally divide most property acquired throughout their marriage. However, spouses have the ability to predetermine their respective entitlements to matrimonial property by entering into a written agreement that provides for the status, ownership and division of that property.
The rights of non-married couples in Alberta is less clear. The Matrimonial Property Act only applies to married spouses or former married spouses. Most Canadian common law jurisdictions have enacted legislation to recognize that persons in common-law relationships, similar to those in marriages, are entitled to property division rights upon separation from their partner. Upon the breakdown of a common-law relationship in Alberta, the parties have to rely on complex legal doctrines to establish their respective rights to property acquired during their common-law relationship. This has resulted in little predictability in the division of assets between non-married couples. However, the legislative regime governing the division of matrimonial property in Alberta will soon change.
Bill 28, the Family Statutes Amendment Act, 2018, received royal assent on December 11, 2018 and will become law on January 1, 2020. The Family Statutes Amendment Act, 2018 contains significant changes to the matrimonial property division legislation in Alberta. The following changes will come into force on January 1, 2020:
- The Matrimonial Property Act will be renamed the Family Property Act.
- The Family Property Act will apply to both married spouses and “adult interdependent partners”. Adult interdependent partners are those that meet the criteria in the Adult Interdependent Relationships Act, SA 2002, c A-4.5. Generally speaking, adult interdependent partners are those who have lived together in an interdependent relationship:
- for at least three years;
- in some circumstances, for less than three years if the couple has a child; or
- who have entered into an adult interdependent partner agreement.
- The Family Property Act specifies that the property division rules apply after beginning a relationship of interdependence. Currently, married couples only divide property acquired from the date of marriage. This change ensures that most property acquired throughout the relationship will be subject to the rules in the Family Property Act.
- The Family Property Act clarifies that married spouses and adult interdependent partners can enter into a property division agreement that applies both during cohabitation before marriage and the time after marriage. If an agreement is entered into before marriage, it will be unenforceable after marriage unless the agreement clearly shows that the parties intended for it to continue to apply after marriage.
While the Matrimonial Property Act and the Family Property Act contain default rules regarding the division of family property, their application in any given case involves some uncertainty. Couples who wish to divide their property differently than that provided for under the Matrimonial Property Act or the Family Property Act can do so by entering into a written agreement. The agreement can provide for the fixed distribution of property acquired before, during and after separation.
The Matrimonial Property Act contains certain requirements that must be met for an agreement to be enforceable. The Family Property Act applies these same requirements to adult interdependent partners.
If you are contemplating entering into an agreement governing the status, ownership and division of family property we recommend that you seek the advice of an experienced legal adviser.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.