After a marriage breaks down and a couple separate or divorce, one of the main matters to settle is how property is divided – including who gets the matrimonial home?
The Matrimonial Property Act and the Family Property Act are the main pieces of legislation used in Alberta to govern property division in a divorce or separation in a common-law relationship.
The guiding principle in both acts is that assets must be divided fairly – and this often means equally. Ideally, this is discussed and negotiated between the divorcing or separating parties. In reality, however, these are often contentious issues that require legal assistance to resolve.
If the couple cannot agree by negotiation, mediation or arbitration, the Alberta courts will decide.
To do so, the Court will consider the assets and debts accrued by each party during the relationship (the matrimonial assets or marital estate) regardless of whose name is on the title.
Table of Contents
- What are “matrimonial assets” in Alberta?
- What is considered a matrimonial home in the Matrimonial Property Act?
- Are matrimonial assets divided equally between spouses?
- Can you live in a matrimonial home without your ex after you separate?
What are “matrimonial assets” in Alberta?
When a couple separates or divorces in Alberta, they must disclose their assets. A disclosure can be obtained via a Notice to Disclose/Notice of Motion, provided by the Alberta Rules of Court.
Examination of these assets allows for a fair and equitable distribution of matrimonial property, but it is first important to understand exactly what is considered marital property and what is not.
Matrimonial assets are regarded as anything brought into a marriage after it begins – including all assets, investments, and real property (including the matrimonial home – whoever it was purchased by).
In other words, it is anything acquired by either spouse or jointly, during the marriage or after separation (before the divorce is finalized). Note that it also includes the increase in value of any assets acquired before the marriage started.
However, some property is considered “exempt”. Any disclosure must therefore include matrimonial property, exempt property and the increase in value of the exempt property.
Examples of exempt matrimonial property in Alberta
Exempt property or “separate” property is anything that was possessed by either party before the marriage began, as well as the following types of property:
- Inheritance
- Gifts from third parties
- Proceeds from a personal injury lawsuit
- Insurance proceeds
Evidence may be required to confirm that it is separate/exempt property, in which case the current market value will be calculated. The original investment is exempt from division, but the increase in value will be calculated and divided in a manner considered “just and equitable”.
What is considered a matrimonial home in the Matrimonial Property Act?
The largest asset that most married couples own is the matrimonial home. As such, what happens to it after a marriage breakdown is usually a key point of discussion.
Under the Matrimonial Property Act, the matrimonial home must be located in Alberta. If it is located elsewhere, the Alberta courts have no jurisdiction over it.
A matrimonial home is considered to be either:
- A house or a part of a house,
- A condominium or apartment, or
- A mobile home
The property must be occupied by the divorcing parties at some point during the marriage (i.e., not a summer home) and it must be leased or owned by one or both parties. If you and your spouse lived in a relative’s home, it does not qualify as a matrimonial home.
Are matrimonial assets divided equally between spouses?
While an equal division of matrimonial assets and debts is quite common, technically the courts have to follow equitable distribution rules in Alberta. This means that a fair division is more important than an equal division.
In some cases, there may be reasons why an unequal property division is the fairest type of division. For instance, if one party wasted a large proportion of the marital assets on gambling or an affair, the judge may try to even out the discrepancy so that the innocent party is not punished.
Can you live in a matrimonial home without your ex after you separate?
Regardless of whose name the title is in, it is possible to live in the matrimonial home without your spouse after you separate – providing you are either in agreement with your spouse or you have the appropriate court order.
Depending on the circumstances of the case, if children are involved, and whether there is any threat of imminent danger to the family, the Alberta courts can order any of the following:
- One spouse to get exclusive possession of the home
- The other spouse to be evicted from the home
- One spouse to be restrained from entering the home
Before authorizing the exclusive possession of the matrimonial home to one of the spouses, an assessment of the relevant financial positions and alternative accommodation options for the other spouse will be made.
Keep in mind that an exclusive possession order does not change who legally owns the property – only who can live there for a stated period.
Also keep in mind that with all divorce decisions involving children, their best interests come first – and that includes decisions about who lives in the matrimonial home.
If you are unsure of your responsibilities and rights under the Matrimonial Property Act in Alberta, speak to a divorce lawyer at Jennings Family Law in Calgary for a free case evaluation.
If you are unsure of your responsibilities and rights under the Matrimonial Property Act in Alberta, speak to a divorce lawyer at Jennings Family Law in Calgary for a confidential case evaluation.
