Common Law Property Division and the introduction of Legislation in Alberta

Common Law Property Division and the introduction of Legislation in Alberta

Common law couples who have decided to end their relationship follow many of the same processes as with a divorce, but there are also significant differences that make consultation with an Alberta family lawyer particularly important especially with the introduction of new legislation that now provides for common law property rights per the Family Property Act and which will come into full force and effective as of January 1, 2020. 

The Family Property Act now establishes rights for the division of:

  • A house or part of a house or self-contained dwelling;
  • Part of a business premise used as living accommodation;

  • A mobile home;

  • A Condo;

  • Automobiles and motorized vehicles; and

  • Personal Property/household goods.

Legally known as 'adult interdependent partners', unmarried couples who meet this definition are acknowledged as now having common law property rights.  The definition of an adult independent partner is the same as provincial Alberta Adult Interdependent Relationships Act (AAIRA).

The Family Property Act requires common-law couples to have either:

  • signed an adult interdependent partnership agreement;

  • lived in a form of interdependency for a minimum of three years;

  • or who those parties’ who have a child together (biological or adopted) and have lived in a relationship of permanence.

The degree of division of common law property may require a 50/50 division of this property or a division that is less than 50/50.  The division of property similar to matrimonial property division may require the sale and division of proceeds, the “buying out” of another party’s interest in this property, or the establishment of legally of property in joint names.

As with divorce, common law couples may ask the courts to grant possession rights and entitlements over a residence and household items/personal property.  Personal property can include a vast collection of household items used by one or more people living in the home they are occupying.

The death of a common law spouse also does not necessitate a loss of common law property rights.  A party can now obtain rights over property of the deceased individual, in particular this is very impactful to unmarried spouses living together at the time of death of their partner.

Parties will need to ensure that any formal claim for common law property division is filed within the 2-year and in transfers 1-year limitation window either the Provincial Court or the Court of Queen’ Bench of Alberta.  When that 2-year 1-year limitation window commences will depend on the facts of each case.

if one partner has retained common law property in their own name with the resources of the other party this can be a high emotional situation where a family lawyer can help offset the imbalance and ensure both spouses have the financial resources needed to move on with their new lives. Alternatively, individuals may be faced with claims against their own property and need legal advice on whether this property falls within the definition of common law property when factoring in all facets of the new legislation.

It is important to retain a lawyer that has extensive experience in common-law in common law division of property and in combination or separately adult-independent partner support issues. 

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