To claim certain rights afforded you under Alberta law after a “common-law” separation, you may need to prove that you are in a common-law relationship.
These rights are automatic if you are married but only apply to common-law relationships that meet certain criteria.
Let’s look at what these criteria are, how the Family Property Act addresses this issue and how you can prove common-law status in the event of a relationship breakdown.
What’s the definition of a “common law” relationship in Alberta?
The term “common law” relationship is not used in Alberta law although you may hear it in everyday discussions.
Legally, a relationship where two people live together like in a marriage but without a marriage certificate is called an “adult interdependent relationship” in Alberta. The parties in the relationship are known as “adult interdependent partners” (AIPs).
These legal terms apply when the partners have:
- Lived together for three or more years, or
- Lived together with some permanence (e.g., they have a child together), or
- Signed an adult interdependent partner agreement.
A “marriage-like” relationship is one where the partners:
- Share each other’s lives, and
- Are emotionally committed to each other, and
- Function as a single economic and domestic unit.
Since January 2020, partners in such a relationship have been afforded similar rights to property division as married couples in Alberta under the Family Property Act (previously known as the Matrimonial Property Act).
Adult interdependent relationships usually entail partners living together but it is not strictly necessary to have a sexual relationship to achieve AIP status. However, it can be more difficult to prove that you are in an adult interdependent relationship if you don’t live together, and other people don’t view you as “partners” (see below).
Differences between interdependent relationships and marriages
The main differences between adult interdependent relationships and marriages in Alberta are:
- Age requirements: with marriages, the minimum age is 18 unless you have written consent from a legal guardian. Adult interdependent partners can legally live together from the age of 16.
- Licensing: with marriages, a legal ceremony must be performed, and a marriage license issued. This is not necessary for a common-law relationship.
- Family connections: married spouses cannot be related lineally in Alberta, but they can engage in an adult interdependent relationship if they are at least 18 and sign an adult interdependent agreement.
- Name changes: with a marriage, a spouse may legally change his/her surname, but AIPs cannot do this.
What are the property rights of AIPs in Alberta?
When married couples separate in Alberta, the Family Property Act grants rights to a fair share of the marital estate to each spouse. Adult interdependent partners enjoy the same property rights after the dissolution of a relationship.
Similarly, when it comes to inheritance rights, the Wills and Succession Act treats adult interdependent partners as “dependents”. Therefore, they are granted the right to the same inheritance as a spouse upon the death of their partner. However, “dower rights” (the right to occupy the dwelling place) only apply to married couples.
To assert these property and inheritance rights, it may be necessary to prove adult interdependent partner status.
How is property divided between AIPs?
The Family Property Act dictates that property must be divided fairly between AIPs after a relationship breakdown. This is slightly different from marriages, where spouses must divide marital property equally.
Generally, both partners keep the property that they brought into the relationship, as well as gifts or inheritance that are not considered part of the relationship’s “estate”.
Joint property and debts from the relationship are usually shared evenly. The increase in value of any property brought into the relationship is usually divided equally.
If you’re unsure about your property rights, it’s best to seek legal advice from a competent family lawyer or divorce lawyer.
How do you prove common-law status in Alberta?
Sometimes, doubts are cast over whether a relationship meets the requirements of the adult interdependent partner designation. These doubts may arise in disputes about the division of property after a relationship breakup, for instance.
In deciding whether a relationship can be classed as “adult interdependent”, the Alberta courts will refer to the Adult Interdependent Relationships Act and consider many aspects, including:
- The nature of the relationship (sexual/platonic)
- Exclusivity of the relationship (level of commitment)
- Living arrangements/household responsibilities
- Economic and domestic arrangements
- Financial contributions to each other and the level of financial dependence
- Presence (or not) of an adult interdependent partner agreement
- Whether the partners care for or support any children
- Provisions made in any wills
- Property ownership arrangements
A signed adult interdependent partner agreement will usually be sufficient to confirm AIP status with the Alberta courts.
If you cannot provide this, to prove common-law status you may need to present documentation that demonstrates a shared home address, shared ownership of residential property, joint leases/rental agreements and shared utility accounts.
What do AIP agreements include?
An adult interdependent partner agreement signed by both partners is a convenient and trusted way to prove AIP status to the Alberta courts.
Your agreement should include the following details:
- Your names and addresses
- A statement demonstrating that you understand your rights and obligations under Alberta law
- Declarations that you are both at least 16 years of age, unmarried, with no other AIP agreement in place and are living together or intend to live together interdependently
- A clause that voids the agreement if the relationship ends
- The date the agreement was made
- Your signatures
- Signatures, names and addresses of two witnesses
- The signature of a legal guardian if you or your partner are 16 or 17 years of age
Often, common-law separations involve complex discussions about property, and you may need assistance with negotiations, mediation, arbitration or even litigation.
At Jennings Family Law in Calgary, our lawyers can help you resolve even the most complex family law matters. Book a free case evaluation to get started.