Property division is an important aspect of every marriage or relationship breakdown – unlike child custody, child support and spousal support, which only apply in some situations.
When couples separate or divorce, the division of property is a fundamental consideration and may be the source of considerable contention and dispute.
If you can cross this hurdle amicably, then you will be well set for an uncontested divorce that reduces the associated delays and expense.
The divorce lawyers at Jennings Family Law in Calgary can help you understand the property division laws in Alberta and prepare for future life as a separated couple.
Property division during divorce in Alberta is covered by the Alberta Family Property Act (Formally the Matrimonial Property Act).
The Family Property Act applies only to legally married spouses in Alberta (not to those in common-law relationships).
It attempts to provide a fair division of assets and can act as a guide if you and your spouse are having trouble reaching agreement on dividing certain property when you separate.
The laws cover many types of property – not just the family home – and apply regardless of how the marriage breakdown occurred (unless the breakdown was directly connected to the improper sale or use of matrimonial property).
Generally speaking, all matrimonial property is divided equally between spouses after a divorce.
However, there may be “exempt” property, such as inherited property, which is dealt with separately (more about this below).
The Family Property Act attempts to divide all matrimonial assets fairly between divorcing spouses.
While this generally means an equal division, certain circumstances may persuade a judge to award more assets to one of the spouses than the other.
Matrimonial assets are property acquired by either spouse during the course of a marriage. Some common examples include:
The matrimonial home is usually the single most significant asset with marital property division.
To be considered the matrimonial home under the MPA, the property must be:
It may be any of the following types of properties:
So, if you own a vacation property or your spouse’s parents own the property in which you live, this would not be classified as the “matrimonial home” for property division purposes in Alberta.
Note that properties in other provinces of Canada do not fall under the jurisdiction of Alberta’s laws.
Individuals who get divorced in Alberta often wonder if they can remain living in the matrimonial home even if the property is not listed under their name.
If you are in agreement about this with your spouse then it should be fairly straightforward to arrange. If not, you will need the court to grant you permission for possession of the home. This can be extremely contentious.
Accordingly, the judge may need to issue specific orders that:
Such extreme measures are only applied if the court deems that other accommodation is available to the evicted spouse, it is in the best interests of the children (if applicable), and the financial positions of each spouse allows it.
If there are emergency measures required (to protect a child from danger, for instance), you can apply to the court for an exclusive possession order without informing your spouse. Note, however, that this will not change the legal ownership of the property.
“Exempt” property in a division of property arrangement may include anything that was brought into the marriage or that was inherited.
However, its increase in value during the time of the marriage until the trial (or settlement) date is not generally exempt from division. If the increase in value is seen as a “product” of the marriage it will, therefore, usually be divided equally.
Like with all other property, distribution will be in a “just and equitable” manner that takes into account the contributions of both spouses to the marriage, its duration, and the respective financial situations of the spouses, amongst other factors.
The Dower Act has been part of Alberta law for over a century, though most Albertans have never heard of it.
Dower rights protect a spouse who is married to a homeowner and who has been living there during the marriage but is not listed on the property title.
The individual is protected in the event of the death of their spouse or if the marriage breaks down.
The spouse who is not listed on the property title is granted a “life estate” in the “homestead”, meaning that he or she can live there for the rest of their life if the spouse registered on the title passes away.
Furthermore, if you have lived in your spouse’s home during your marriage, your spouse cannot sell or lease the home without your consent until a minimum of three years has passed.
The issues raised by the Dower Act must be addressed during negotiations for the division of matrimonial property. Legal representation is advisable to ensure that title transfers can proceed as planned without being challenged in court.
The division of matrimonial property is rarely a straightforward process and will not be legally enforceable until a consent judgment has been made or there is a court trial.
Speak to the divorce lawyer at Jennings Family Law in Calgary for a case evaluation so that you understand your rights regarding matrimonial assets.
