What property you share as Matrimonial property

The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic discusses what property can be divided under the Family Property Act. This act applies to former married spouses and Adult Interdependent Partners (‘AIP’s’).

Family Property Act

The Family Property Act creates a system for dividing property after a relationship breakdown. It applies to both married and AIP’s who meet the certain criteria identified below. You and your partner may agree and write up a contract on how the property will be distributed in the event of a separation. Under this Act, spouses and AIP’s may also agree on property ownership before and during a marriage or relationship. A lawyer should overlook such agreements, as it must first comply with the law in order to be enforceable. If the parties cannot come to an agreement, the spouse or AIP can apply for a Family Property Order to have the Court distribute the property amongst both parties.

A. Application by Married Spouses

Former married spouses may apply for a Family Property Order to have their property divided. You may apply as a ‘married spouse’ despite the fact that your marriage has been terminated and you are now legally separated. However, in order to qualify for applying, you and your spouse must have resided in Alberta at the time of your marriage, whether or not you lived together. The Court will also only grant a Family Property Order if you and your spouse have been living separate at the time of the application or the marriage is legally terminated.

You may start your application after any divorce or separation proceedings have started. However, the application must be filed within two years after you and your spouse have legally separated or the former spouse gave the property to another person, whichever occurs first.

B. Application by Adult Interdependent Partners

These are partners who were dependent on each other by being emotionally committed and/or sharing financial responsibilities. Other factors are also considered to determine if you and your partner are AIP’s. For an instance, you must have also either lived in a dependent relationship for at least 3 years or have had a child together. It is not required that you be married to the other person to have your property divided according to these rules. However, at the time of application, you must have been separated for at least a year or have signed a written agreement on your separation. If you meet these requirements, you may apply for a Family Property Order to have your property distributed by applying for a Statement of Claim at the Court of Queen’s Bench. However, both partners must currently or previously have resided in Alberta at the time of their relationship in order to apply.

You may start your application anytime after you knew or had reason to know that your relationship with your partner had finished and you were separated. However, the application must not be filed any later than two years from the separation or the date the former partner gave the property to another person, whichever occurs first.

C. Property Distribution

The Court will use the same standard to divide property for both former AIP’s and spouses. Each relationship has its different circumstances, which leads the Court to consider several factors when determining how to divide the property amongst both parties. The property that can be subject to division can be jointly shared or separately owned by the parties.

Factors

When the Court makes a property distribution, it will consider the following factors to determine what is fair in the circumstances:

  • The contribution made by each spouse or AIP during the marriage or relationship. This includes any contribution as a homemaker or parent or any other role that contributed to the welfare of the family;
  •  Any financial contributions made in acquiring, managing or improving a business or other property owned by both parties;
  • The income, earning capacity, liabilities, obligations, property and financial resources of both parties at the time of the marriage/relationship and at the time trial;
  • The duration of the marriage/relationship;
  • Whether the property was acquired before or after the marriage/relationship;
  • Any oral or written agreement between the parties;
  • Any substantial gift made by a spouse or AIP to a third party;
  • Any previous or existing Property Orders between the spouses or AIP’s;
  • Any previous Court Order;
  • Tax Liabilities;
  • A spouse’s or AIP’s attempt to deprive the other spouse or AIP of any property;
  • Any other relevant circumstances or factors.

Exempt Property

This property is separate property and that will not be divided with the other former spouse or AIP. Exempt property includes:

  • Gifts received from third parties by a spouse or AIP; or
  • Inherited property; or
  • Property that a spouse or AIP received before the marriage or relationship; or
  • Personal injury or legal settlement awards; or
  • Insurance compensation.

Equally Shared Property

If the property being distributed is not exempt property and is brought by the parties during or immediately before the marriage or during a relationship between AIP’s, the Court will distribute that property equally amongst the parties, unless there is evidence to suggest that it would be unfair to do so in the circumstances. To determine fairness in the circumstances, the Court will consider the above factors.

Other Property Subject to Division

Considering the above factors, the Court will also distribute the following types property according to what is fair in the given circumstances:

  • Property acquired by a spouse during the marriage with income received during marriage or from the funds received from their exempt property that was sold or exchanged;
  • Property acquired by an AIP during the relationship with income received after relationship began or from funds received from their exempt property that was sold or exchanged;
  • Property acquired by a spouse or AIP after being separated;
  • Property acquired by a spouse or AIP by a gift from the other spouse or AIP while they were in the marriage or relationship.

Debts

The Family Property Act has no specific section to deal with debts. Generally, debts acquired by either or both parties during the marriage or relationship are shared, unless there is a compelling reason to do otherwise.

Family Home Possession

In matters regarding the possession of the home, the Court may either: (i) direct a former spouse or AIP to be given the sole possession of the family home (ii) be evicted from the family home or (iii) be restrained from entering anywhere near the family home. This may also include an order to possess any other property surrounding the family home, which is required for its use and enjoyment. The Court will consider the following factors before making its decision:

  • The availability of other accommodation for the evicted former spouse or AIP;
  • Needs of any children residing in family home;
  • Financial positions of both parties;
  • Any other existing and related Property or Support/Maintenance Order made by a Court.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.