Is Property Split Equally in an Alberta Divorce or Separation?

Many people assume a separation means everything is cut in half. In Alberta the starting point is equal, but it applies to a specific group of property, and the Court can adjust it.

This article explains what the equal-sharing presumption covers, what falls outside it, and the reasons a different split may be ordered.

This article covers the law of Alberta.

The starting point is equal

Under the Family Property Act, property acquired during the marriage that is not exempt is distributed equally between spouses. Adult interdependent partners have the same equal rule for property acquired after their relationship began.

The rule reaches property owned jointly or individually, so having your name alone on an account or title does not take it out of the pool. The Act now applies to married spouses and adult interdependent partners alike.

Pension plan benefits and locked-in retirement accounts are also part of the picture. Even where the pension or retirement legislation does not allow them to be transferred or paid out, the Court must still value them and distribute their value under the Act.

The Family Property Act is the former Matrimonial Property Act renamed, and the changes took effect on January 1, 2020. Spouses who were divorced or living separate and apart before that date generally stay under the old Act, with some exceptions. For adult interdependent partners, the Act applies only if they had not begun living separate and apart before that date.

What is not part of the equal split

Certain property is exempt from distribution. The main categories are:

• Gifts from a third party and inheritances
• Property a spouse acquired before the marriage, or before an interdependent relationship began
• Tort damages or settlements awarded to one spouse, and proceeds of a non-property insurance policy

There is an exception: damages and insurance proceeds are not exempt to the extent they compensate a loss suffered by both spouses or partners.

What is exempt is the market value fixed at the later of the marriage date (or the date the interdependent relationship began) and the date the property was acquired.

Growth in exempt property is treated differently

Exempt property can grow. Under section 7(3)(a), the increase between its exempt value and its market value at trial is not exempt. The Court distributes it in a manner that is just and equitable after considering section 8, so it is not automatically shared equally.

Property bought with income from exempt property, property acquired after a decree nisi or after partners became former partners, and gifts between spouses or partners are also distributed on the just-and-equitable basis. Many disputes happen in this area, so it helps to keep records showing where assets came from.

When the Court can depart from an equal split

The equal-sharing presumption yields where an equal split would not be just and equitable after the Court considers the section 8 matters. Those matters include:

• Contributions to the family, including homemaking and parenting, and to a business or farm
• Contributions to acquiring, keeping or improving property
• Each party's income, earning capacity, liabilities, property and resources at the start and at trial
• The length of the marriage or relationship
• Property acquired while the parties lived separate and apart
• Any oral or written agreement, and earlier distributions or court orders
• Tax liability from a transfer or sale
• Dissipation of property to the other person's detriment
• Any other relevant fact or circumstance

Liabilities are weighed under these factors, since the Act has no separate debt-division section. How much weight any factor gets depends on the facts, and a lawyer can tell you how it may apply to you.

Agreements and what to do next

A written agreement can change the result. A subsisting agreement dealing with ownership and division can displace Part 1 of the Act if it meets section 38. Section 38 requires each party to acknowledge in writing, apart from the other, that they understand its effect and intend to give up claims, and to sign freely before a lawyer who does not act for the other party. Unmarried partners may also opt out of the default rules with their own agreement.

Unless a written agreement that meets section 38 provides otherwise, property to be distributed is valued at the date of trial. Exempt property is a separate question, because its exempt value is fixed at the later of the marriage date (or the date the interdependent relationship began) and the date it was acquired, and only its growth is measured to trial.

If a claim goes to court, 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. A claim for division of family property is started by a Statement of Claim for Division of Family Property (Form FL-2), or Form FL-3 where it is combined with a divorce claim. Confirm the current forms with the court before filing.

• List assets and mark which you think are exempt, with proof
• Collect records showing when and how each asset was acquired
• Check the 2-year deadline for spouses and partners, which differs by situation
• Locate any marriage or cohabitation agreement
• Get legal advice before agreeing to a split, especially if you think an equal split would not be fair

Frequently asked questions