How Is the Family Home Divided in an Alberta Separation?

For most couples the house is the largest asset, and separation raises hard questions. Does it have to be sold? Can one of you buy the other out? What if only one name is on title, or you bought it before the relationship began?

This article explains how the Family Property Act (RSA 2000, c F-4.7) generally treats the family home in Alberta. It applies to married spouses and adult interdependent partners alike.

This article covers the law of Alberta.

Title does not decide who has a claim

Section 7(1) lets the Court divide all property owned by the spouses or partners, whether owned jointly or individually. A home held by only one spouse is therefore still subject to division, subject to the exemption for property owned before the relationship and the sharing of its growth.

For property acquired during the marriage that is not exempt, the Act's starting point is equal distribution. Adult interdependent partners have the same equal rule for property acquired after their relationship began. That presumption gives way if an equal split would not be just and equitable after the Court considers the section 8 matters.

A home owned before the relationship

Property a spouse acquired before the marriage is exempt where there was no interdependent relationship beforehand. Property acquired before an interdependent relationship began is also exempt, including where the spouses were in one immediately before marriage, and so is property an adult interdependent partner acquired before their relationship began. The exempt value is fixed at the later of the marriage date (or the date the relationship began, where applicable) and the date the property was acquired.

The exemption does not protect increases in value. The gap between the exempt value and the trial-date market value is not exempt, and the Court distributes it in a manner that is just and equitable after considering section 8, so it is not automatically shared equally. How mortgage payments or renovations during the relationship affect this depends on the facts, and a lawyer can confirm how it applies.

Sale, buyout or staying put

The Act does not require every home to be sold. Among other things, the Court can order payment of money, transfer of an interest in property, sale of property and division of the proceeds, payment by instalments, and charges to secure payment. This allows several outcomes.

Many couples reach these outcomes by agreement instead of a court order. If you make a written agreement meant to replace the Act's rules, it must meet section 38, including written acknowledgements and independent legal advice for each party.

How the equity is worked out

Equity is, in general terms, the home's value minus what is owed against it. The Act values property at the date of trial unless a written agreement meeting section 38 sets another date. It does not set out how to appraise a home, so couples often use an appraisal or agree on a value.

The Act has no separate debt-division section. Liabilities and obligations are considered under section 8(d), or section 8(d.1) for adult interdependent partners, when the Court decides whether an equal division is just and equitable.

Living in the home, and protecting your position

Separately from ownership, the Court can grant one spouse exclusive possession of the family home, order the other out, or restrain the other from attending near it. It considers other accommodation, the children's needs, each party's finances and existing court orders. A possession order can be registered at Land Titles, after which the affected spouse can dispose of or encumber their interest only with the written consent of the party in possession or a court order.

• Once proceedings are started, a party who knows of them must not dispose of or encumber household goods or remove household items from the home without consent or a court order.
• A party who has started proceedings may file a certificate of lis pendens with the Registrar of Land Titles, and later instruments affecting the land are subject to the claim.
• The Court can restrain a planned transfer or gift that could defeat a claim, even while you still live together.

What to do next

• Get the title, mortgage statements and property tax records.
• Note when the home was bought, and the date of marriage or start of the relationship.
• Collect records of down payments, renovations and who paid them.
• Do not sell, transfer or borrow against the home without advice.
• Keep track of your deadlines and speak with a family lawyer early.

A spouse generally has 2 years from separation to apply, and adult interdependent partners have 2 years from when they knew or should have known the relationship ended. A single reconciliation period of up to 90 days is not counted when calculating the time for spouses. A claim against a transfer made to defeat a claim has a shorter limit: 2 years from separation or 1 year after the transfer, whichever comes first.

Applications are started with a Statement of Claim for Division of Family Property, and confirm current forms with the court before filing.

Frequently asked questions