When filing a Statement of Claim for Divorce and Division of Family Property as the initiating document to commence a divorce proceeding, one might also then expect that division of property between spouses would also be included when finally receiving a Divorce Judgment and Corollary Relief Order at the end of a divorce proceeding. However, that is not the case.
A Divorce Judgment and Corollary Relief Order confirms your divorce has been granted, and what can also be addressed in this pleading are issues such as: custody, child support and spousal support. This is because each of these family law legal areas are included within the federal legislation of the Divorce Act. Specifically, an order concerning parenting is included in Section 16.1, an order concerning child support is included in Section 15.1, and an order concerning child support is included in Section 15.1 of the Divorce Act.
What is not included within the Divorce Act is a legal framework that governs the division of family / matrimonial property. Division of family / matrimonial property is governed by legislation enacted by each province in Canada. Specifically, in Alberta we have the Family Property Act, which replaced the Matrimonial Property Act, effective January 1st, 2020.
As such, it may seem odd that the initiating filing for divorce can also include division of family / matrimonial property, but the final pleading that you receive, your Divorce Judgment and Corollary Relief Order does not.
So when in a divorce proceeding does division of family / matrimonial property get addressed?
Division of family / matrimonial property can either can go into a contract between yourself and your separated spouse, and incorporated into what is commonly referred to as a Separation Agreement, or Property Agreement, or Minutes of Settlement. These contracts are not filed with courthouse here in Canada; they are though in order to be legally binding in nature signed with legal counsel here in Alberta, so that this contract dividing property between spouses can be an enforceable contract governed by the Family Property Act.
There is also the option of having division of property detailed in a Matrimonial / Family Property Order for interim division of property, and in a Matrimonial / Family Property Judgment for final division of property. In this case then one would see details of property division in an Order or Judgment filed with the courthouse as a pleading.
Why does property get included within a contract between parties but often not in a filed pleading?
It is considered a common route to have property division detailed in contract between parties rather than in a Family / Matrimonial Property Order or Judgment, as property matters are complicated and sometime latent with detail that would be extremely cumbersome to include in an Order or Judgment. So instead, parties often have their divorce and issues of parenting and child and spousal support set forth in a filed pleading set out concisely in their Divorce Judgment and Corollary Relief Order, and the issues of property division in detail and length in their private contracts rather than also in Matrimonial / Family Property Orders and Judgments.
If my division of property is not in an order then is it not enforceable?
Even though your division of property between yourself and your separated spouse is not in a court order or judgment, this does not mean that the division of property in a contract cannot be enforceable by a court. As a standard practice family lawyers include in contracts (Separation Agreements, Property Agreements, or Minutes of Settlement) specific enforcement clauses. These enforcement clauses can even specify amounts of funds that are held as security if a contract is challenged by a party, or the degree of costs that are payable by a party inclusive of that party’s own legal fees on a full indemnity basis. This in turn ensures that parties can rely upon the enforceability of these contracts, notwithstanding that they are not filed pleadings.
Regardless of the legal mechanism desired, Family Central Law is eager to assist clients with their divorce and family law matters. To learn more about your rights and the legal services we provide, please contact us today for a free consultation with one of our experienced family lawyers by calling our office at 587-392-7970 or emailing firstname.lastname@example.org, or by clicking on our consultation page.