Know your Rights under the new Family Property Act in Alberta
On January 1, 2020, the new Family Property Act will come into full force and effect. Until that date, Adult Interdependent Partners do not have legislation to guide them in the division of property and debt the way that married couples do.
To ascertain whether this new legislation will apply to you as an unmarried couple, the first step will be to ascertain whether your relationship is an Adult Interdependent Partnership. In order to qualify as Adult Interdependent Partners – and thus for an automatic equal division of property upon separation – couples must live together in a relationship of interdependence, (meaning that they share one another’s lives, are emotionally committed to each other and function as an economic and domestic unit),
– for at least 3 years; or
– if less than three years, have a child together by birth or adoption; or
– have entered into a written agreement in which they acknowledge that they are adult interdependent partners.
Quite frequently in Canadian society, couples have children, purchase property, put each other through school and plan for retirement as a unit without marrying but this was not acknowledged at the time the Matrimonial Property Act (Alberta) came into effect. This set up an unintentional inequity that mostly benefited men: as the higher earners, it was financially beneficial for men to be in a committed but unmarried relationship to avoid having to share their assets. This has been particularly detrimental for women in Adult Interdependent Partnerships who chose to be out of the workforce to raise children while their partner continued to work and amass assets. The Family Law Act corrects that inequity by recognizing that many couples have consciously embarked on a “joint venture” even though they are not wed.
Upon separation, the following may be relevant to prove that you functioned as an economic and domestic unit and are therefore Adult Interdependent Partners:
(a) whether or not you had a conjugal relationship (conjugal does not mean “sexual relations” alone but rather indicates that there is a significant degree of attachment between two individuals);
(b) the degree of exclusivity of your relationship;
(c) the conduct and habits of you and your former partner regarding household activities and living arrangements;
(d) the degree to which you held yourselves out to others as an economic and domestic unit;
(e) the degree to which you formalized your legal obligations, intentions and responsibilities toward one another;
(f) the extent to which direct and indirect contributions made by either person to the other or to the couple’s mutual well‑being;
(g) the degree of financial dependence or interdependence and any arrangements for financial support between you;
(h) the care and support of your children; and
(i) the ownership, use and acquisition of property.
The Family Property Act recognizes that the choice to legally marry should be a personal one not based on financial need, the fact that couples can be committed emotionally and financially without being married and that once the decision is made to be in a committed relationship, the termination of that relationship should not result in an unequal division of assets that were acquired during it.
Property Division Changes
To summarize, the following changes will come into effect on January 1, 2020:
- The Matrimonial Property Act will become the Family Property Act
- The new legislation will apply to both married spouses and Adult Interdependent Partners
- Couples can draft their own property division agreement rather than following the rules in the legislation;
- Property division rules will apply to property acquired after beginning a relationship of interdependence for both adult interdependent partners and married couples who lived together prior to marriage;
- Include a two year window from the date the individual knew or (or should have known) their adult interdependent relationship ended to make a claim for property division;
- Clarify that partners can enter into a property ownership and division agreement that applies both during cohabitation (living together before marriage) and the time after marriage;
- Provide that agreements made during cohabitation would not apply after marriage unless that is the clear intention; and
- Enforce existing property division agreements that were legal and binding under the law when they were signed.