Are You as Good as Married on January 1, 2020?

Changes to laws in Alberta when it comes to common law relationship and common law property are in effect now – and may affect you and your common law partner should you break up. On January 1, 2020 the Alberta Matrimonial Property Act was replaced with the new Family Property Act. The new legislation changes the rules around common law property – or the property you and your common law partner own – for couples who meet certain criteria and separate after January 1, 2020. Here is what you need to know.

What is Common Law?

In Alberta, a couple is considered “common law”, or an Adult Interdependent Partner (“AIP”), under the legislation when (a) you and your partner have lived together for 3 or more years, or (b) you and your partner have lived together with some degree of permanence, and have a child together. In other words, you and your partner live together as a couple, but you are not legally married. It is important to note that if you don’t meet these criteria, you may still be a common law couple and have property division rights but not under the new legislation.

What’s the Difference Between Married and Common Law When It Comes to Property?

Both Married Property Division and Common Law Property Division are dealt with as part of Family Law. Family Law is made up of a combination of legislation and caselaw. In this blog we are highlighting an important change to the legislation.

When married couples separate, they have the right to various property remedies, typically one-half of whatever matrimonial property was accumulated during the marriage. This right to half of the matrimonial property may be subject to a legally binding cohabitation or marriage agreement, as well as other exceptions set out the legislation and caselaw. Also, depending on the circumstances, exemptions to equal division can include such things as inheritances, gifts, lawsuit damages and property that was owned prior to marriage.

When it comes to property division for married or common law couples, there are a variety of family law dispute resolution options. However, one important thing separating married couples from common law couples is that married couples have the right to apply to the court for an order for exclusive possession of the matrimonial home. This can force one party to move out of the home so that the other party can occupy it exclusively. The new legislation now makes this available to qualifying separated common law couples.

How Do You Know if the New Family Property Act Affects You?

All couples who separated before January 1, 2020 will still be under the pre-existing common property division scheme, which typically provides separating common law couples with fewer property division rights than married couples. However, if you separate after January 1, 2020 the new Family Property Act may apply to your property division and other rights.

The new Family Property Act will apply to you if meet the definition of an AIP (mentioned above) in the Alberta Adult Interdependent Relationships Act. To restate, an AIP is a person living in a relationship of interdependence that meets at least one of the following criteria:

1. You have lived in an interdependent relationship continuously for at least 3 years; or
2. There is an interdependent relationship of some permanence and you have a child together; or
3. You have signed an agreement to be in an interdependent relationship that meets the criteria of the Adult Interdependent Relationships Act.

It is notable that the above list of relationships now subject to property division under the new Family Property Act is not limited to romantic relationships. For example, an adult interdependent relationship could include 2 non-romantic adult friends or relatives who live together, have done so for more than 3 years, and are financially interdependent. In order to be considered an AIP, both people must share each other’s lives, be emotionally committed to one another, and function as an economic and domestic unit. People who live together and provide a service, such as personal care or housekeeping and are compensated, are generally not considered to be AIPs.

What If You Have Questions?

As discussed, these new changes not only bring non-married common law couples into our legislated matrimonial property division scheme, but also bring in people who we might not have considered to be common law couples but are in a relationship of interdependence as defined by the Adult Interdependent Relationships Act.

Do any of these changes make things different if you are married? No. However, a legally binding cohabitation or marriage agreement is going to be more important now than ever before, as these changes will impact a broader range of couples.

If you want to understand what your property rights are upon separation, please speak to one of our family law lawyers by contacting [email protected], or contacting us here.

This blog post is intended as general information only and not legal advice. If you require legal advice, we recommend you see a lawyer.