You and your spouse or partner are required to divide matrimonial property that has accumulated over your marriage. Some property may be exempt. Some property might be shareable on an other-than-50/50 basis. Most property and debt are divided 50/50. Neither the Matrimonial Property Act nor the Family Property Act uses “fault” as a way to evaluate each spouse’s entitlement to division of property.
In order to determine whether the Matrimonial Property Act or the Family Property Act applies to your relationship, please scroll to the topic ‘Property Shared by Spouses or Life Parners’.
There are 2 methods you may use to divide your shared property:
The contract that provides the details of your property agreement may be called a Separation Agreement, a Separation Contract, a Divorce and Property Contract or Minutes of Settlement. You and your spouse or partner are required to have independent legal advice regarding the agreement for division of property. Each lawyer will sign a certificate of independent legal advice after reviewing the contract with you. Certain rights are provided for each person under the Matrimonial Property Act or the Family Property Act and you must be made aware of these rights. Your lawyer will tell you what rights you have under the law and what rights you can sign away. There are some rights which you cannot contract away. For example, you cannot contract out of the right to ask the Court for the exclusive use of the matrimonial home if required in future.
You should consult with a lawyer to protect your rights, ensure you understand what rights you may or may not be giving up, and to ensure the contract is prepared so that it is legally binding. For example, the contract must be in writing and must be consensual. You and your spouse or partner must have the mental capacity to enter into a contract Full disclosure of all property owned by each spouse must be made. You must be informed of all property owned, and debts owed by your spouse or partner and you must disclose all of your property and debt to your spouse or partner. The contract must be signed separately by each person in front of his or her lawyers and each lawyer must sign a Certificate confirming that they gave independent legal advice before you signed the contract. If you do not meet all the requirements of the Act for proper execution of the contract, it can be challenged.
Should the Matrimonial Property Act apply to your relationship and before you can apply to the Court, you must both have been habitually resident in Alberta at the time of your marriage, or at the end of your marriage. You start your legal action by filing a Statement of Claim at the Court of Queen’s Bench. If you are getting a divorce you may bring the claim for matrimonial property action at the same time, or you may start either one first, provided that an application for an order for the distribution of your matrimonial property may only be made if:
There are important time limitations you must consider when making a claim for property distribution. If you start and complete your divorce proceedings without a property distribution claim, you must bring the property distribution claim within 2 years of the granting of the Divorce Judgment. If[MR1] you have not started your divorce proceedings, you may bring the application within 2 years from the date upon which you separated from your spouse or within 1 year from the date upon which your spouse gave away or transferred property under circumstances as set out in point 5 above, whichever occurs first.
You and your spouse must provide a Statement of all property you own alone or with another person to the Court and to the other spouse. The Statement must include the property that was sold or given away within the 1 year prior to the application for property distribution.
Once an action has been started, neither spouse may dispose or encumber of any property without an Order of the Court or the consent of the other spouse. Either spouse cannot make a gift, or transfer the property to anyone else before the Court makes the Order. If one spouse has given any property away or transferred any property with the purpose of defeating a claim or to the disadvantage of the other spouse, and the person to whom the gift or transfer was made knew or should have known the reason for the gift or transfer, the Court may order that the person who received the gift or transfer must return the gift or transfer to the innocent spouse.
The[MR2] Court may make an order relating to the distribution of all property, regardless of which spouse owned it. A Court may:
The Court will take the following factors into account in making an order:
Should the Family Property Act apply to your relationship, an application may only be made if:-
The requirements which must be met in relation to the application, the factors which the Court will take into consideration and the powers of the Court is the same as if the Matrimonial Property Act applied.
As is the case with the Matrimonial Property Act, there are important limitations as to the time in which the application may be brought. Should the parties be married, the same limitations as prescribed by the Matrimonial Property Act is applicable. However, if the parties are not married, the following time limits are important:
In Alberta, the value of your property is determined at the date of the trial. The value of the property at the time of marriage and/or the time when the property was acquired may be excluded from the division in certain circumstances.
This portion is inserted as section 6 of the Matrimonial Property Act also provides for division with divorce proceedings having commenced
This portion is inserted as someone who intends seeking this relief ought to be informed what kind of orders may follow in terms of section 9 of the Matrimonial Property Act