A Guide to Property Division and Family Agreements for Married and Unmarried Couples in Alberta
If you are working through a divorce or separation, you probably have questions regarding the division of property in Alberta. The first thing to know is that working with an experienced divorce lawyer who handles family agreements and property division is going to spare you headaches and hassles.
On January 1, 2020, the laws for dividing property between unmarried couples will change. The Matrimonial Property Act will be renamed to the Family Property Act and will apply to both married and unmarried couples (adult interdependent relationships). For more information on the upcoming changes, please visit the Government of Alberta website and watch for future updates on our website.
However, for the time being, here’s a brief overview of what you should know about asset division in Alberta in 2019.
Division of Property for Married Couples
Courts in Alberta will apply the Matrimonial Property Act (MPA) when the time comes to divide assets. Keep in mind that the MPA will only apply in your case if you and your partner were legally married. It will not apply in cases of common-law relationships. What’s more, the MPA only needs to be applied if both spouses are unable to reach a private agreement regarding how assets should be divided.
What will the Courts look at when determining how assets should be divided? All the assets and debts that have been accrued throughout the course of a marriage will be looked at. This covers debts and assets that are attached to individual names, joint names or the names of businesses. The Court is also going to look at any assets that are in place that were brought into the marriage from another source. That includes things like pre-marriage assets, inheritances and gifts. The laws in Alberta state that all assets and debts that were acquired during a marriage are to be split evenly. A Court will also entertain any persuasive reasons regarding why assets should not be split evenly. In addition, certain assets, such as pre-marriage assets, may be exempt from division altogether. Overall, the laws relating to property division can be complicated, which is why most individuals will consult an experienced divorce lawyer when it comes to property division.
An important asset that needs to be dealt with during the separation process is the matrimonial home. Some very specific factors need to be in effect for a property to qualify as a matrimonial home. For instance, a property must be located in Alberta in order to qualify under the MPA. That means that out-of-province summer homes won’t qualify. A home must be owned by one or both parties. That means that a home belonging to a parent or family member will not qualify. There are also special criteria involved when a Court decides as to which spouse can stay in the matrimonial home until the property is sold or one of the spouses buys out the other spouse. The availability of other accommodations is one of the criteria. However, the financial position of the spouses, as well as children’s needs, will also be considered by the Court when deciding as to which spouse gets exclusive possession of the matrimonial home.
Timing is important when it comes to dealing with matrimonial assets. It will be necessary to file a statement of claim for an application for a matrimonial property order within two years following the date of divorce. However, in some cases, the deadline may be earlier. It’s easy to see just how complex things can get when dividing marital assets. Working with a divorce lawyer in Alberta can help to ensure that you’ll meet the necessary deadlines and file the proper paperwork when the future of valuable assets hangs in the balance.
Division of Property for Unmarried Couples
How are assets divided in Alberta when an unmarried couple separates? The process can be slightly more challenging since certain criteria must be met.
For instance, Alberta’s Adult Interdependent Relationships Act defines adult independent partners as two people who live together in a relationship of interdependence for at least three years. A relationship may also qualify if the couple has been together for less than three years if they have a child together. The Court in Alberta defines interdependence as a state of being emotionally committed to one another, functioning as a unit both domestically and economically and sharing lives.
Adult interdependent partners in Alberta will have the same rules and protections for asset divisions as married couples beginning January 1, 2020. However, for relationships that ended prior to January 1, 2020, the rules and protections are based on the laws of Unjust Enrichment, which can be very complicated. In any event, the process of determining the nature of a relationship and the role of each partner can be difficult for unmarried couples. Working with a family law lawyer to get through this challenging step is highly advisable.
Parties can save thousands of dollars by settling their separation or divorce case outside of Court. That is where family agreements come into place. By creating a legally binding separation/matrimonial agreement, parties can resolve all issues such as custody, child support, spousal support and property division outside of Court and finalize their divorce in a much quicker and cheaper way. However, in some cases, parties may not be able to come to an agreement on some or all of the issues. In those cases, it will be necessary to seek assistance from the Court. In either case, the final divorce judgment still needs to be granted by the Court. However, if parties have already reached an agreement, the final divorce judgment will be granted without the need for anyone to attend Court. An experienced divorce lawyer can help you draft a strong legally binding agreement and obtain a final divorce judgment for you.
Family agreements can also come in handy before parties marry or enter a common-law relationship. An experienced divorce lawyer can assist you with drafting a pre-nuptial or cohabitation agreement to avoid any potential hassles if a relationship does not end up working out. Pre-nuptials can be particularly important if you have considerable pre-marital assets and would like to protect your investments.
Do You Need Help with a Separation Agreement or Division of Property in Alberta?
Dealing with assets and agreements can be challenging when a relationship comes to an end. You can ensure that every detail is looked after by working with Safi Law Group which specializes in family law and the division of assets in Alberta. In addition, our team is experienced in assisting clients with high net worth divorces, where parties might own businesses or valuable properties that require specialized attention. The founder of Safi Law Group, Sangin (Sam) Safi, worked in the financial sector before becoming a lawyer and is very comfortable dissecting financial statements. Put his experience to your use in cases dealing with complicated business valuations.
Our law office deals with the handling of assets for married couples and the division of property for unmarried couples.
Don’t hesitate to call us today at (780) 760-7234 or book an appointment online.
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