New Legislation for 'Common Law' Couples and How Property is Divided
Property division laws for two people living in a relationship of interdependence, such as a common-law couple, changed on January 1, 2020.
In Alberta, when a married couple divorces, both spouses are entitled to a portion of the marital property according to the Matrimonial Property Act, RSA 2000, c M-8. This legislation provides the courts the framework for the distribution of marital property between spouses.
Before January 1, 2020, this did not apply to common-law couples. The Matrimonial Property Act only applied to married spouses or former married spouses. But now most Canadian jurisdictions, including Alberta, recognize that persons in common-law relationships, or "Adult Interdependent Relationship," are entitled to property division rights if the relationship breaks down.
Bill 28, the Family Statutes Amendment Act, 2018, received approval on December 11, 2018 and became law on January 1, 2020. The Family Statutes Amendment Act, 2018 contains significant changes to the marital property division legislation in Alberta.
The Matrimonial Property Act and the Family Property Act includes specific provisions in regards to the distribution of family property. Still, you can "opt-out" and enter into your own written agreement if you want to divide property differently than the rules in the new legislation. This agreement can allow for a fixed division of property acquired before, during, and after separation. Keep in mind the Matrimonial Property Act contains particular requirements for an agreement to be enforceable. The Family Property Act applies these same requirements to adult interdependent partners.
If you don't draft your own agreement, the rules will apply to property obtained after the beginning of your relationship of interdependence.
As well as a significant change to make a note regarding married spouses who lived together before marriage. If you lived together in a relationship of interdependence before being married, the same property division rules apply to your entire relationship – not just the years you were married.
Adult interdependent relationships
"Adult interdependent partners" is defined in the Province Alberta Adult Interdependent Relationships Act as two people who live together in a relationship:
- for a continuous period of at least three years
- of some permanence (and less than three years) if the couple has a child together, or
- who have entered into an adult interdependent partner agreement
A relationship of interdependence is when two people are not married to one another but still:
- share one another's lives
- are emotionally committed to one another, and
- function as an economic and domestic unit
The Adult Interdependent Relationships Act sets out factors to consider when determining whether two people function as an economic and domestic unit. They include:
- the exclusivity of the relationship
- how they behave when it comes to household activities and living arrangements
- how they hold themselves out to others
- the contributions they make to each other or their mutual well-being
- the degree of financial dependence or interdependence between them
- the care and support of children
- the ownership and use of property
The only way for two people who are related to each other, by blood or adoption, to become adult interdependent partners is to sign an adult interdependent partner agreement.
In Alberta, the term "adult Interdependent relationship" is used for a wide range of committed partnerships. These could include:
- two people in a marriage-like relationship
- two people in a non-romantic relationship
- two family members who have entered into an adult interdependent partner agreement
As of January 1, 2020, the Family Property Act permits adult interdependent partners to submit a claim for property division within two years from the date the applicant identified that the relationship had ended or should have understood that it had ended.
Existing property division agreements that were enforceable under the law when they were signed will still be enforceable.
Note: The information presented in this blog is provided as a general guide regarding matrimonial property division legislation in Alberta. You may want to consult with a lawyer concerning your particular circumstances.