Do Common-Law Couples Split Property 50/50 in Alberta?

When a common-law relationship ends, many people assume everything is simply split down the middle. In Alberta, the starting point is close to that, but only if you and your ex count as adult interdependent partners, and only for certain property.

This article explains who the property rules cover, what is set aside as exempt, and the reasons a court may divide things unequally. Your own facts matter a great deal, so treat this as a general map.

This article covers the law of Alberta.

Who the property rules cover

The Family Property Act applies to adult interdependent partners as well as spouses, and to former adult interdependent partners. Whether you count as an adult interdependent partner depends on the tests in the Adult Interdependent Relationships Act, which are based on time, a child or a signed agreement.

Two people generally become adult interdependent partners if they live together in a relationship of interdependence for a continuous period of at least 3 years. A couple can qualify sooner if they live together in a relationship of some permanence and have a child of the relationship by birth or adoption. They can also qualify with no minimum time by signing an adult interdependent partner agreement. However, a person cannot sign an agreement if they are already party to an existing one, if they are married, or if they are a minor, unless the minor is at least 16 and the minor's guardians gave prior written consent. People related by blood or adoption can become partners of each other only by signing an agreement.

A couple who do not meet one of those tests cannot use the Family Property Act and must rely on other claims, such as unjust enrichment or trust claims. The Act can be used by partners who separate on or after January 1, 2020.

The starting point: equal division

The court shall distribute non-exempt property equally between adult interdependent partners, unless it appears that an equal split would not be just and equitable. The rules apply to property obtained after the relationship of interdependence began.

Being on title is not the whole story. A partner whose name is not on the home may still obtain a share of or an interest in it, because the court can declare an interest in property and can give one partner exclusive possession of the family home.

Pensions and retirement assets are handled under the Act only where the requirements of the governing pension legislation have been met.

What is exempt

Some property is set aside before the equal split. Property received as a gift from a third party or by inheritance is exempt, as are tort damages and certain insurance proceeds, unless they compensate a loss to both partners.

The exempt amount is the market value on the applicable date. For adult interdependent partners, that is the later of the date the relationship began or the date the property was acquired. Any increase in value of exempt property, measured against its value at trial, is not exempt and is distributed by the court.

• An inheritance you received during the relationship is likely exempt at its starting value.
• Growth in that inheritance since you received it is shared.
• Keep records showing when and how you acquired each major asset.

When the split can be unequal

The Act lists factors the court may weigh in departing from an equal division:

• Contributions to the relationship as a homemaker or parent.
• Contributions to a business, or to acquiring, conserving or improving property.
• Each party's income, earning capacity, liabilities and resources.
• The duration of the relationship of interdependence.
• Whether property was acquired while living separate and apart.
• Any agreement between the parties.
• Gifts or transfers to third parties, and dissipation of property.
• Any other relevant fact.

Partners can also opt out of the Act's rules with their own property division agreement, and existing property agreements that were enforceable when signed remain enforceable.

What to do next

• Work out whether you meet the 3-year, child or agreement test.
• List property, debts, gifts, inheritances and pensions, with dates.
• Gather any cohabitation, property or partner agreements.
• Note when you separated, since claims have a time limit.
• Speak with a lawyer about how the factors apply to your situation.

A lawyer can confirm how the rules apply to your property and whether an unequal split is realistic.

Frequently asked questions