COMMON LAW COUPLES AS GOOD AS MARRIED COME JANUARY, 2020

By: Sarah Nasser

Currently there is no legislation in Alberta that indicates how to divide property when an unmarried couple breaks up. This is soon set to change.  In slightly more than a year, Alberta will join British Columbia, Manitoba and Saskatchewan in providing people in Adult Interdependent Partnerships (“AIP”) with property rights equivalent to those enjoyed by married spouses.

This is a notable change in the the law because at present unmarried partners have no presumptive property rights except to jointly owned property, whether their relationship lasted for 3 years or 30. Instead, to get an interest in property owned by the other partner, individuals in unmarried relationships must make a claim under the law of trusts, usually the constructive trust or unjust enrichment – which can often result in inconsistent outcomes and significant costs to the parties.

If you are currently in an AIP you may want to keep reading…  Bill 28: the Family Statutes Amendment Act serves to update the Matrimonial Property Act (“MPA”) to make it easier for people in AIP to divide their property if their relationship breaks down. This new legislation which will come into force on January 1, 2020 extends property division rules, found in the MPA, to couples in AIP (also known as common law partnerships) under Alberta’s Adult Interdependent Relationships Act. Generally these rules mean that property acquired during a relationship is divided equally if that relationship ends.

Are you currently in an Adult Interdependent relationship?

An adult interdependent partner is defined in Alberta’s Adult Interdependent Relationships Act as two people who live together in a relationship of interdependence:

• for at least 3 years, or
• of some permanence (and less than 3 years) if the couple has a child, or
• who have entered into an adult interdependent agreement

A relationship of interdependence means a relationship outside marriage in which any 2 persons:

• share one another’s lives
• are emotionally committed to one another; and
• function as an economic and domestic unit

*There are other instances whereby a relationship of interdependence may arise, for advice about whether you are currently in an AIP please contact any one of our matrimonial lawyers.

What are the changes?

Bill 28 will impact three pieces of government legislation:

1. Matrimonial Property Act – Bill 28 will amend the MPA to extend to the current property division rules applicable to married couples to AIP by:

• Renaming the MPA the Family Property Act (“FPA”);
• Having the FPA apply to both married couples and AIP;
• Clarifying that property division rules will apply to any property acquired after the start of the relationship (whether AIP or marriage);
• Allowing AIP 2 years from the date their partnership ended to make a claim for property division; 
• Clarifying that couples can enter into property division agreements that may apply both following cohabitation (for AIP) and divorce (for married couples). 

2. Family Law Act (“FLA”) – Bill 28 will amend the FLA to expand the circumstances where unmarried parents can make an application for ongoing child support for their dependent adult children (i.e. over 18) with a disability or illness or who are full-time students (the FLA currently states such applications can only be made for adult children who are full-time students aged 18-22) by:

• removing the age limit for adult child support;
• allowing adult children who are still dependent on their parents due to a disability or “other cause” to be eligible for child support; 

3.  Married Women’s Act (“MWA”) – Bill 28 would repeal the MWA which was enacted in 1922. The MWA was originally created to allow women to own property and sign contracts. This legislation is outdated and no longer necessary.

What can you do?

Couples are choosing to live together, outside of marriage, at increasing rates. The proposed changes to the MPA should serve as a reminder of the importance of considering entering into an agreement with your current or future partner about how your property will be divided (as well as other considerations including financial support) upon the unfortunate breakdown of that partnership and/or marriage.  Cohabitation, Prenuptial and Marriage Contracts allow the partners to draft their own agreement to structure the division of their property the way they want rather than follow the government created rules for such division of property.

If you would like to learn more about Cohabitation Agreements, Prenuptial Agreements and/or Adult Interdependent Relationships (also known as common law relationships) please contact one of our matrimonial lawyers.