As of January 1, 2020, Alberta’s Matrimonial Property Act is replaced by the new Family Property Act. Below are the major changes you should know:
The new Family Property Act applies to both married and unmarried (common law) couples if they separated after January 1, 2020. Before January 1, 2020 there was no specific law pertaining to unmarried couples. The new Act applies to same sex and opposite sex partners who are in a romantic relationship, those who are related to each other (if the latter meets the legal definition based on 3 or more years of cohabitation) and in some potential but limited circumstances, unrelated parties who simply cohabit with each other in a relationship of interdependence. The legal definition for adult interdependent partners (“AIP”) is a person involved with another person in an unmarried relationships of interdependence where they:
Are emotionally committed to each other
Function as an economic and domestic unit
Adult interdependent partners must be
Living in an independent relationship for a minimum of three years
Living in an interdependent relationship of some permanence where this is a child by birth or adoption
Living in or intend to live in an interdependent relationship and have entered into a written adult interdependent partner agreement.
Former AIPs can agree on how they want to divide property, but that agreement must follow the formal execution requirements of the new Act (i.e. be in writing, signed by both parties with Certificates attached signed by separate lawyers giving independent legal advice to each party), and be signed without pressure or coercion from either person. It is necessary to engage a qualified legal practitioner to assist with this process to provide independent legal advice if you would like to rely on the enforceability of the agreement.
In cases where there is contention between partners and further action is required, the new Family Property Act offers a blueprint for the division of property if there’s a breakdown of both marriages and AIP relationships. This blueprint will be applied by the courts if a spouse or former AIP applies for a Family Property Order.
The new Act does not change the Limitations Act of Alberta, which allows each partner up to 2 years from the date they knew the relationship ended to make a claim for property division.
Although each relationship is different, this blueprint provides a structure that mirrors the traditional matrimonial division of assets and debts. In summary, the court will consider property acquired after the relationship of interdependence began in the calculation of assets. This excludes (with some exception) anything acquired as inheritance, damages in tort, 3rd party gifts, and proceeds of certain insurance policies unrelated to property.
Under the new Act, exclusive possession of any property leased or owned by one or both former AIPs or that has been lived in together, can be court ordered solely to one of the former AIPs. This protects both married and unmarried couples’ rights to the family home.
Since partners often enter into other formal and informal agreements throughout their time as a couple together, it is important to retain a qualified lawyer to ensure that you do not get overwhelmed by the complexities of property division process.