The Most Important Thing to Know
Common Law ≠ Married — In Alberta Property Law
Alberta is one of the few Canadian provinces where common law couples do not have the same automatic property rights as married spouses. Under Alberta's Family Property Act, married spouses benefit from a presumption of equal division of matrimonial property upon separation. Common law partners have no equivalent protection — property rights are determined by whose name is on the title and, when disputed, by constructive trust principles that require costly legal proceedings to establish.
This distinction matters enormously when buying a home together. For married couples, the Family Property Act provides a safety net if the relationship ends. For common law couples, there is no equivalent safety net — the title structure you choose at the time of purchase is the single most important legal decision you make together.
The good news is that with the right decisions made upfront — how the title is structured, whether a cohabitation agreement is in place, and whether your wills reflect your intentions — buying as a common law couple in Calgary can be just as well-protected as buying as a married couple. It just requires deliberate planning rather than automatic legal protection.
This page is general information only — not legal or financial advice. Always consult a family lawyer and your accountant before making title and ownership decisions. CalgaryListings Group works alongside your legal counsel throughout the purchase.
The Most Important Decision
How to Structure Your Title — Three Options, Very Different Outcomes
When you buy a home together as a common law couple, you need to decide how title will be registered at the Alberta Land Titles Office. This decision has legal, financial, and estate planning implications that last for as long as you own the property.
1 · Joint Tenancy with Right of Survivorship
Both partners own the entire property together equally. If one partner dies, their interest passes automatically to the surviving partner — no estate, no will required for this asset.
- ✓ Surviving partner automatically inherits — simple and immediate
- ✓ No probate on the first death · clear 50/50 ownership
- ✗ Cannot reflect unequal contributions — always 50/50
- ✗ Cannot leave your share to anyone else without severing the joint tenancy first
Best for: couples contributing equally who want maximum simplicity and survivor protection — with wills covering broader estate intentions
2 · Tenants in Common
Each partner owns a defined percentage — equal or unequal (60/40, 70/30) to reflect different contributions. Each can leave their share to anyone in their will.
- ✓ Reflects unequal contributions accurately
- ✓ Each partner chooses who inherits their share
- ✗ Surviving partner does NOT automatically inherit — a will is absolutely essential
- ✗ Without a will, a share passes under intestacy — which does not prioritize common law partners in Alberta
Best for: couples with unequal contributions who want title to reflect their actual stake — provided both have current, properly drafted wills
⚠ 3 · One Partner's Name Only
Sometimes one name is on title alone — for financing or credit reasons, or because the property predates the relationship. The partner not on title has no automatic ownership rights — even after years of contributing to the mortgage and expenses. If the relationship ends, the off-title partner must pursue a costly, uncertain constructive trust claim through the courts.
If only one name is on title: a cohabitation agreement is essential. Without it, the off-title partner has essentially no legal protection. Speak with a family lawyer immediately.
The Document You Need
Cohabitation Agreements — Your Legal Safety Net
A cohabitation agreement is the most important legal document a common law couple can have when buying a home together. It is the functional equivalent of a prenuptial agreement — a written contract that sets out each partner's rights and responsibilities and what happens if the relationship ends. In the absence of Alberta's automatic family property protections, a cohabitation agreement fills the gap. A well-drafted agreement for a home purchase should cover:
Ownership Percentages
What percentage each partner owns — especially where contributions are unequal. This should align with how title is registered.
Down Payment Contributions
Who contributed what — and whether it's a gift to the shared purchase or a debt owed back on separation.
Mortgage & Expense Sharing
How the mortgage, taxes, insurance, and maintenance are divided — and what happens if one partner stops contributing.
Separation — Sale or Buyout
Is the property sold and proceeds divided? Can one partner buy the other out? At what price, on what timeline?
Death of One Partner
What happens to the deceased partner's share — and how this interacts with their will and the title structure.
Future Improvements
How renovations funded by one partner affect ownership percentages — shared investment or personal contribution.
Children from Previous Relationships
How the property is treated in the context of estate obligations, existing court orders, or family agreements.
Dispute Resolution
How disagreements are resolved — mediation, arbitration, or court — and who bears costs in different scenarios.
Important: a cohabitation agreement must be prepared by a family lawyer — ideally with independent legal advice for each partner — to be enforceable. A template from the internet is not a substitute. The cost of a properly drafted agreement (typically $1,500–$3,500) is trivial compared to the cost of a property dispute without one.
Tax Treatment
Tax Considerations When Buying as a Common Law Couple
For most federal tax purposes, common law couples who have lived together for at least 12 months (or who share a child) are treated the same as married couples. However, there are specific areas where additional planning is warranted.
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Principal Residence Exemption
Common law couples are a family unit for the PRE — only one property can be the principal residence per family unit per year, even if each partner owns a separate property. Critical if either partner has an
investment property.
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Unequal Ownership & Deductions
With unequal tenants-in-common shares, expenses and future capital gains allocate in proportion to ownership. Make sure the title registration matches your actual financial arrangement.
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Attribution Rules on Loans
If one partner lends the other money for a down payment, spousal attribution rules may apply after 12+ months of cohabitation. Speak with your accountant if funds are a loan rather than a contribution.
Non-Negotiable
Wills — Not Optional for Common Law Couples in Alberta
This cannot be stated strongly enough: every common law couple buying a home in Alberta needs current, properly drafted wills. This is not estate planning for the distant future — it is basic protection for your partner right now.
⚠ What happens without a will: under Alberta's Wills and Succession Act, intestacy prioritizes your legal spouse, then children, then parents, then siblings. A common law partner — regardless of how long you have lived together — is not automatically an heir. Your share of a tenants-in-common property could go to your family, not your partner. Joint tenancy protects the property itself, but every other asset — bank accounts, investments, vehicles — bypasses your partner under intestacy. A current will drafted by a wills and estates lawyer is the only protection.
Client Stories
What Our Buyer Clients Say
"As first-time home buyers, my wife and I were quite intimidated by the whole process. We felt that he had our best interests at heart. We are so happy in our new home and Tyler made this happen for us we are very grateful!"
Malcolm Camsell — First-Time Buyer · ★★★★★"A very big thank you from me and my husband to Tyler Tost for helping us find our first home! Despite a little bit of a bumpy ride (as first-time buyers, we had a LOT of anxiety), Tyler kept us feeling confident through the whole process."
Heather — First-Time Buyer · ★★★★★"We had such a wonderful experience with Crystal Tost and her team. She was patient with the process and never put any pressure on us to make a decision that was not in our best interest. When we found the home she was thorough and made the closing very seamless and straightforward."
Jane R — First-Time Buyer · ★★★★★Read more client reviews →
Common Questions
Buying as a Common Law Couple in Calgary — FAQ
Do common law couples have the same property rights as married couples in Alberta?
No — this is the most important thing to understand before buying. Alberta's Family Property Act gives married spouses automatic property rights on separation — including a presumption of equal division. Common law partners have no equivalent automatic rights. Property rights are determined by whose name is on title and, in disputes, by constructive trust principles that require legal proceedings to establish. How you structure your title and whether you have a cohabitation agreement matters far more for common law couples than for married couples.
Should we put both names on the title?
Generally yes — if both partners are contributing to the purchase and intend to share ownership, both names should be on title. If only one partner's name is on title, the other has no automatic ownership rights — even after years of mortgage contributions and shared expenses. The only protection available to an off-title common law partner is a cohabitation agreement, and even then, enforcing it requires legal proceedings. Talk to a family lawyer about the right title structure for your situation before you finalize your purchase.
What is a cohabitation agreement and do we need one?
A cohabitation agreement is a legal contract between common law partners specifying what each partner owns, how expenses are shared, and what happens to the property if the relationship ends or one partner dies. For married couples, the Family Property Act provides a legal safety net — for common law couples, a cohabitation agreement is that safety net. It is strongly recommended for any common law couple purchasing a home together — particularly where contributions are unequal, where only one partner is on title, or where either partner has children from a previous relationship. Cost: typically $1,500–$3,500 with independent legal advice for both partners.
What is the difference between joint tenancy and tenants in common?
Joint tenancy means both partners own the property equally with right of survivorship — if one partner dies, the other automatically inherits without probate. You cannot own unequal shares. Tenants in common means each partner owns a defined percentage — which can be unequal (e.g., 60/40) to reflect different contributions. In tenants in common, your share does not automatically pass to your partner on death — it forms part of your estate, distributed according to your will. Without a will, your share goes through Alberta intestacy rules — which do not automatically provide for a common law partner. Both structures have merit; the right choice depends on your specific situation.
Can both of us qualify as first-time home buyers?
Each partner is assessed individually for most first-time buyer programs. If both partners have never owned a principal residence, both can access the FHSA ($8,000/year, $40,000 lifetime each) and the Home Buyers' Plan (up to $60,000 each from RRSPs). Combined, this could mean up to $80,000 in FHSA withdrawals and $120,000 in RRSP withdrawals tax-free. If one partner has previously owned a home, only the first-time buyer partner qualifies individually. Confirm your specific eligibility with your accountant and
Calgary mortgage broker Al Zayat.
What if my partner and I contributed different amounts to the down payment?
If contributions are unequal, you have two main options: register as joint tenants (50/50) regardless of contributions — in which case the larger-contributing partner is effectively gifting equity to the other — or register as tenants in common with a percentage that reflects your actual contributions. The latter is more financially accurate but requires a cohabitation agreement to document what happens on separation. Keep records of every dollar contributed by each partner — bank statements, FHSA and RRSP withdrawal confirmations, and gift letters — as these matter both legally and for tax purposes.
What happens to our mortgage if we separate?
Both partners who signed the mortgage remain legally responsible for the full mortgage balance to the lender — regardless of any private arrangement between you about who pays. If one partner stops paying, the lender can pursue both partners for the full amount. To remove one partner from the mortgage, the home must be refinanced in the remaining partner's name alone (subject to them qualifying independently) or sold. This is one reason why the financial structure of a separation needs to be addressed quickly — and why involving a
Calgary mortgage broker alongside your family lawyer is important when separating.
Do we need wills if we're buying as a common law couple?
Yes — absolutely. Common law partners in Alberta are not automatic heirs under intestacy law. If you die without a will, your share of the property (if tenants in common) goes to your estate — distributed to your children, parents, or siblings, not your partner. Even in joint tenancy (where the property itself passes automatically), all other assets go through intestacy without a will. Both partners should have current, properly drafted wills as a condition of closing on any home purchase together. This is not optional — it is the only protection available to your partner for assets beyond the jointly-owned home.