Is Property Split Equally in Alberta? Equal Sharing Explained

You may have heard that property is split equally when a couple separates. In Alberta the real rule is more precise: equal sharing is where the analysis starts, and it applies to a defined pool of property.

This article explains what the presumption covers, what can move the result away from equal, and how agreements fit in. It is general information, and the right outcome in a real case depends on the facts.

This article covers the law of Alberta.

The short answer: equal is the starting point

Under section 7(4) of the Family Property Act, property a spouse acquired during the marriage that is not exempt is distributed equally between the spouses. Section 7(5) gives adult interdependent partners the same equal rule for property acquired after their relationship began.

That equal rule yields where an equal split would not be just and equitable after the Court considers the matters listed in section 8. So the law does not guarantee an equal split. It sets equal sharing as the presumption.

What is in the pool being divided

The Court may divide all property owned by the spouses or partners, whether owned jointly or individually, so the name on the title does not settle the question. Unless a written agreement that meets section 38 provides otherwise, property to be distributed is valued at the date of the trial.

Debts do not have their own section. Liabilities and obligations are considered under section 8(d) when the Court decides whether an equal division is just and equitable. Pensions and locked-in retirement accounts must still be valued and their value distributed, even if the plan cannot be transferred or paid out.

When the Court can depart from equal

The Court considers the matters in section 8. The first group focuses on the family and the parties' circumstances:

• Contributions to the marriage and family welfare, including homemaking and parenting.
• Contributions to a business, farm or enterprise.
• Contributions to acquiring, keeping or improving property.
• Each party's income, earning capacity, liabilities, obligations, property and resources at the start and at trial.
• The length of the marriage or relationship.

The second group covers events and agreements:

• Whether property was acquired while the parties lived separate and apart.
• Any oral or written agreement.
• Substantial gifts to third parties or transfers to people who were not bona fide purchasers.
• Earlier distributions by gift, agreement or order, and earlier court orders.
• Tax liability from a transfer or sale.
• Dissipation of property to the other's detriment.
• Any other relevant fact or circumstance.

Property that is not automatically split equally

Some property never enters the equal-sharing rule at all. Gifts from third parties and inheritances are exempt from distribution. Property a spouse acquired before the marriage is also exempt where there was no interdependent relationship beforehand, and property an adult interdependent partner acquired before their relationship began is exempt as well.

Other property is distributed on the just-and-equitable basis rather than equally. That includes the growth in value of exempt property, property bought with income from exempt property during the marriage, property acquired after a decree nisi or similar order, and gifts between spouses or partners. In those cases the Court looks at the section 8 matters instead of starting from an equal split.

Agreements and what to do next

A subsisting written agreement dealing with ownership and division of property can displace Part 1 of the Act if it meets section 38. That section requires each party to acknowledge in writing, apart from the other, that they understand its nature and effect and the claims they may be giving up, and to sign freely before a lawyer who does not act for the other party. A written agreement that meets section 38 may also set a different valuation date.

Adult interdependent partners may opt out of the default rules by signing their own agreement, and if they do not, the rules apply to property obtained after the relationship began. A premarital agreement is unenforceable after marriage unless it clearly states the parties meant it to continue after marriage.

• Find any prenuptial, cohabitation or separation agreement and bring it to a lawyer.
• List contributions you made, such as childcare, work in a family business or renovations, with supporting records.
• Gather income, asset and debt records for both of you.
• Note the date you separated and the date of any divorce decree, because spouses generally have two years from separation or from the decree to apply, and adult interdependent partners have two years from when they knew or should have known the relationship had ended. A single reconciliation period of up to 90 days is not counted for spouses.
• Get advice before agreeing to any split, equal or not.

Frequently asked questions