Do Common-Law Partners Have Property Rights in Alberta?

When an unmarried couple separates, the question is usually who gets the house, savings and other property. In Alberta, the answer depends heavily on whether you count as adult interdependent partners.

This article explains what the Family Property Act offers, how property is divided, the deadline, and what to consider if you do not qualify.

This article covers the law of Alberta.

Status decides which law applies

The Family Property Act applies to adult interdependent partners as well as spouses, and it can be used by adult interdependent partners who separate on or after January 1, 2020. You qualify by living together in a relationship of interdependence for 3 years, by having a child together in a relationship of some permanence, or by signing an agreement.

A relationship of interdependence is a relationship outside marriage in which two people share one another's lives, are emotionally committed to one another, and function as an economic and domestic unit. Factors for whether a couple functions as an economic and domestic unit include exclusivity, household roles, how they present themselves to others, mutual contributions, financial dependence, child care, and property ownership and use.

There are exceptions. People related by blood or adoption can become adult interdependent partners of each other only by signing an agreement, and the 3-year and child routes do not apply to them. No relationship of interdependence exists where one person provides the other with domestic support and personal care for a fee or other consideration. A person cannot have more than one adult interdependent partner at one time, and a married person cannot become one while living with his or her spouse.

An application can be made only if both partners' habitual residence is in Alberta, or under the alternatives in s. 3.1, such as the last joint habitual residence being in Alberta.

How property is divided

The Court shall distribute non-exempt property equally, unless it would not be just and equitable to do so. Property division rules apply to property obtained after the relationship of interdependence began.

Exempt property includes gifts from third parties, inheritances, tort damages and certain insurance proceeds. The increase in value of exempt property is not exempt and is distributed by the Court. Pensions are divided only where the pension legislation requirements are met.

Factors for an unequal split include contributions as homemaker or parent, contributions to a business or property, each party's income and earning capacity, the length of the relationship, any agreement, and dissipation of property.

The family home and court orders

A partner whose name is not on title may obtain a share of or interest in a home through the Act if they are an adult interdependent partner. The Court can order payment or transfer of property, order a sale and division of proceeds, declare an interest, order payment over time, require security, charge property or impose a trust.

While you are living separate and apart, the Court can restrain a partner who transfers property to defeat your claim or dissipates it.

Deadlines and agreements

• An application is started by statement of claim.
• It must generally be commenced within 2 years after you first knew, or ought to have known, you became a former partner.
• For a claim about a transfer to defeat your claim, the deadline is the earlier of 2 years from knowing, or one year after the transfer.
• The Act contains no stated extension for missing the 2-year limit.
• Partners can opt out by their own property agreement, and enforceable earlier agreements remain enforceable.

Partner status can end in several ways, including a written agreement to live separate and apart without possibility of reconciliation, or living separate and apart for more than one year with one or both intending the relationship not to continue. Alberta.ca says that partners who stop living together are separated, that adult interdependent partners separated for 1 year are officially considered to have ended their relationship, and that they may also end it by agreement.

A separation agreement is a contract that can cover parenting time, child support, spousal support and division of property. Alberta.ca says partners can write one themselves but recommends speaking with a lawyer.

If you are not an adult interdependent partner

A partner who does not meet the 3-year, child or agreement test cannot use the Family Property Act and must rely on other claims such as unjust enrichment or trust claims. The general Limitations Act bars a claim 2 years after you first knew of it, or 10 years after it arose, whichever expires first, and whether it governs a separate unjust enrichment claim should be confirmed. How it applies to your claim is worth confirming with a lawyer.

What to do next

• Note the date you believe the relationship ended, and work out your deadline carefully: the 2 years generally runs from when you first knew, or ought to have known, that you became a former partner, and a claim about a transfer made to defeat your claim has an earlier cut-off of one year after the transfer.
• Collect records of when you moved in, who paid for what, and who owns what.
• Find any cohabitation or property agreement you signed.
• Do not sell or transfer major assets without advice.
• Speak to a lawyer early about both your status and your deadline.

Property is only one part of a separation. Support, parenting and other questions may also arise, and how they apply depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions