Property Division for Married and Common Law Couples

Property Division for Married and Common Law Couples

Property Division (Married and Common Law couples)

When a marriage or common law relationship breaks down, there are usually assets and debts that require division between the parties. For married couples, the division of assets is automatically triggered by the provisions of Alberta’s Matrimonial Property Act. For common law couples, this type of division is not automatic, but is made possible by several common law equitable principles – most commonly a claim for unjust enrichment.

Regardless of whether separating couples are married or not, there are often a great many complicated issues that arise with respect to the division of their assets and liabilities, oftentimes regardless of whether those assets and liabilities are jointly or solely owned. For example:

  • Some assets may be exempt (i.e. inheritances, pre-marriage assets and gifts) though this too can become a grey area where these exempt assets have been co-mingled with matrimonial assets.
  • Common law spouses may, in certain circumstances, have property acquired after the commencement of their cohabitation divided equally, while in in other cases, such property will be divided proportionally to the parties’ financial and other contributions. Assessing this proportionality can become quite difficult.
  • One married party’s dower rights may entitle him or her to a life estate in the matrimonial home despite that party is not being registered on title.
  • The needs of children and the individual parties can also play a role in deciding which party should be entitled to exclusive possession of the matrimonial home independent of which party has his or her name on title.
  • Matrimonial property may be divided unequally in certain circumstances, such as when one party has wasted matrimonial assets on inappropriate expenditures.
  • The division of business assets and shares of a privately owned company can become very complicated depending on various factors such as the type of business, third party interests and valuation.
  • Valuation of assets and liabilities often involves assessing the opinion of at least two competing experts, and further, may involve disagreement over the date on which different assets and liabilities should be valued for the purposes of division.

As with most family law issues, it is almost always the best option to negotiate a reasonable settlement arrangement between the parties using one of the many available alternative dispute resolution methods (i.e. mediation, judicial dispute resolution, collaborative law, etc) and then incorporating that arrangement into an enforceable settlement agreement drafted and signed off on by the parties’ respective legal counsel. In some cases, however, it is necessary to move forward with a trial to determine the division of family-related assets and liabilities; in such circumstances, our firm is well equipped to ensure your rights in this regard are properly enforced and protected.

To book an initial consultation to discuss the above matters, please call our office at 403-948-0009.


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