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Alberta’s Family Property Act: new protection for common-law couples

An update of Alberta legislation will create a more equitable way of dividing assets when common-law couples split, says Calgary and Vancouver family lawyer Marcus Sixta.

“The current situation for people in common-law relationships in Alberta is such that they need to rely on arcane legal doctrine in order to sort out their property division when they separate,” says Sixta, founder of Crossroads Law.

Without the same rights as those in marriages, he tells there’s no predictability in how the assets of couples in common-law relationships will be distributed.

Bill 28 updates the Matrimonial Property Act to include “adult independent partners” and comes into force Jan. 1, 2020, reports CBC.

Because every case is different, there’s a great deal of uncertainty in these matters, making it difficult for lawyers to offer advice, Sixta says.

“When common-law couples separate now, they need to rely on unjust enrichment, constructive trusts in order to make a claim for property that is not in their name. There are a number of different tests in order to make those claims,” he says.

“If those assets are in the male partner’s name at the end of the relationship, the female partner needs to rely on the doctrine of unjust enrichment, for example, to make a claim against that property. And they need to show that their partner has been unjustly enriched and that they’ve suffered a corresponding deprivation.”

Sixta says the current laws are viewed by many as unfair, particularly to women, who are more frequently focusing on the children and family while the other partner works.

Married couples, on the other hand, fall under the Matrimonial Property Act, which sees an equal division of property accumulated during the marriage, he explains.

“With doctrines like unjust enrichment, it may not be a 50-50 asset division for couples — it might only be 10 per cent for one spouse, he says. “This new bill will change the situation so that common-law couples fall under the same property regime as people who are married.”

The changes, which have been introduced but haven’t yet worked through the process to receive royal assent, will see the Matrimonial Property Act amended to the Family Property Act.

But common-law couples who have been together for three years, or shorter if they have a child, will be treated the same as married partners during a separation, he says.

“It’s a big change and one that’s been slowly happening across Canada,” he says, adding that British Columbia, Saskatchewan and Manitoba have all moved in that direction, although Ontario hasn’t yet. “It will create more stability.

“It will reduce the amount of legal fees for people needing to pay to litigate this issue because it will be more straightforward,” Sixta says.

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