How Is Property Divided in an Alberta Divorce? A Step-by-Step Guide

If you are starting a divorce in Alberta, property is often the part that feels most uncertain. You may wonder what counts, whose name matters, and who decides how it is split. The answer comes mainly from one statute, and it follows a fairly predictable order of steps.

This article walks through that order in plain language. It explains how the Family Property Act sorts, values and divides what you own. Every family is different, so treat it as a map and not a prediction of your result.

This article covers the law of Alberta.

Which law applies to you

The Family Property Act is the former Matrimonial Property Act, renamed. The changes took effect January 1, 2020. The Act now applies to adult interdependent partners as well as married spouses.

There is an exception for older separations. Spouses who were divorced, or who were living separate and apart, before January 1, 2020 stay under the old Matrimonial Property Act, except that sections 15 and 18 of the new Act apply if the event or separation was on or after February 1, 2012. Proceedings begun under the old Act may move to the new Act if the parties consent.

For adult interdependent partners, the Act applies only if they had not begun living separate and apart before January 1, 2020. If you signed a property agreement that was enforceable when you signed it, it remains enforceable.

Step 1: Check timing and start the claim

For spouses, a family property order can be made in specified situations. These include after a divorce or when the spouses have lived separate and apart for a continuous period of at least one year. There is also a time limit: an application based on separation must be brought within 2 years after the spouses separated, but a claim against a transfer made to defeat a claim has a shorter limit of 2 years from separation or 1 year after the transfer, whichever comes first. Applications tied to a divorce are generally due within 2 years of the decree.

A single reconciliation period of up to 90 days is not counted when calculating that time. Because deadlines can be lost, it is worth getting advice early.

A claim is started by a Statement of Claim for Division of Family Property (Form FL-2), or Form FL-3 if it is combined with a divorce claim. The Court of King's Bench manual says it is filed with the FL-10 if property is at issue. Form numbers are sometimes written differently, so confirm them on the Alberta Courts website before filing.

Step 2: Disclose everything you own

Each party must file a sworn statement disclosing all their property wherever located, including property disposed of within one year before the application, and serve it on the other party. The form is the Family (Matrimonial) Property Statement.

The Court of King's Bench Financial Disclosure Statement also includes a sworn itemized list of income, assets and liabilities, and a list of property claimed as exempt. Useful records to gather include:

• Bank, investment and retirement account statements
• Land titles, mortgage statements and property documents
• Vehicle ownership papers and loan statements
• Records of gifts, inheritances and what you owned before the relationship
• Debt statements, including credit cards and lines of credit

Step 3: Sort what is exempt from what is shareable

The Court may divide all property owned by the spouses, whether owned jointly or individually. A home in only one name is still subject to division. Some property is exempt from sharing, including:

• Property received as a gift from a third party, or by inheritance
• Property acquired before the marriage or before the relationship began
• Tort damages or settlements awarded to one spouse, and proceeds of a non-property insurance policy

Damages and insurance proceeds are not exempt to the extent they compensate a loss suffered by both spouses. What is exempt is the market value fixed at the later of the marriage date and the date the property was acquired.

Exempt does not always mean untouchable. Growth in value of exempt property is not exempt, and the Court distributes it in a manner that is just and equitable rather than automatically equally. Property bought with income from exempt property, and gifts between spouses, are treated the same way.

Step 4: Value, divide and order

Unless a written agreement that meets section 38 provides otherwise, property is valued at the date of the trial. Property acquired during the marriage that is not exempt, and is not one of the items the Court distributes on a just-and-equitable basis, is distributed equally between the spouses. The Court can depart from equal where it would not be just and equitable after considering the section 8 factors.

The Act has no stand-alone debt-division section. Liabilities and obligations are considered under section 8 when the Court decides whether an equal division is just and equitable.

The Court has wide power to make the division work. It can order payment of money, transfer of an interest in property, sale of property and division of proceeds, payment by instalments, or a charge against property. Pension benefits may be valued and distributed even when they cannot be paid out directly.

What to do next

• Write down your separation date and any reconciliation period, and note the 2-year deadline
• Gather statements and documents for every asset and debt
• Once proceedings are started, do not dispose of or encumber household goods or remove household items from the home unless the other party consents or a court order allows it, because breaking this rule is an offence
• Once you have started proceedings, ask a lawyer about filing a certificate of lis pendens with the Registrar of Land Titles if you are worried about land being sold
• Have any existing marriage or cohabitation agreement reviewed, since a valid section 38 agreement can displace the Act

A lawyer can confirm which version of the law applies to you and how the steps fit your situation.

Frequently asked questions