How Property Is Divided on Separation Under Alberta's Family Property Act

When a relationship ends, the home is usually the biggest question. Who keeps it, who buys out the other, and what happens to savings, pensions and debts all depend on a set of rules that many people only learn about after they separate.

In Alberta, the main law is the Family Property Act. This article explains in plain words how it works, what is exempt, how the court can order a division, and the deadlines to watch. Every situation is different, so treat this as a starting map.

This article covers the law of Alberta.

Who the Family Property Act covers

The Act applies to spouses and to adult interdependent partners. The court distributes all property of spouses or adult interdependent partners under the Act.

An adult interdependent partner is someone who has lived with the other person in a relationship of interdependence for a continuous period of at least 3 years, or with some permanence if there is a child, or who has signed an adult interdependent partner agreement. The changes for unmarried partners generally apply to couples who separate on or after January 1, 2020, and couples can opt out through their own property division agreement.

The starting point: equal division

For property that is not exempt, the court shall distribute it equally between spouses, and the same approach applies to adult interdependent partners. The exception is where equal division would not be just and equitable.

In deciding whether to depart from equal sharing, the court looks at factors such as contributions, income and earning capacity, liabilities, agreements between the partners and any other relevant fact. Property is valued at the date of trial.

Whose name is on the title is not the deciding point. The question is whether the property is exempt and, if not, how it should be shared.

What counts as exempt property

Some property is exempt from the equal division. The Act lists these categories:

• Property acquired by gift from a third party.
• Property acquired by inheritance.
• Property acquired before the marriage or before the relationship of interdependence began.
• Certain tort damages awards, unless they compensate a loss to both partners.
• Insurance proceeds that are not in respect of property.

The exemption is the market value at the applicable date. Any increase in the value of exempt property is distributed in the way the court considers just and equitable, so it is not automatically shared equally. This often matters when one partner owned the home before the relationship and the other helped pay it down or maintain it.

What orders the court can make about the home

The court may order one spouse or partner to pay money or transfer an interest in property, or order that property be sold and the proceeds divided. It can set terms and conditions of a sale.

Separately, the court can decide who lives in the family home in the meantime. It may give one person exclusive possession, direct that the other be evicted, or restrain the other from entering or attending at or near the home, with conditions and time limits. It considers other accommodation within the means of both partners and the needs of any children living there.

Deadlines and protecting your claim

For spouses, an application may be started within 2 years after the date of separation, or 2 years after the divorce judgment or declaration of nullity. For adult interdependent partners, it must be started no later than 2 years after the applicant first knew, or ought to have known, they were former partners.

If a partner has transferred or intends to transfer substantial property to a third party, or made a gift, to defeat a claim, the limit is the earlier of 2 years or one year after the property is transferred or given.

A spouse or partner who starts proceedings may file a certificate of lis pendens with the Registrar of Land Titles, and later instruments affecting the land are subject to that claim. Once proceedings start, household goods cannot be disposed of or encumbered without a court order or consent.

What to do next

• Note your date of separation and keep a record of it.
• List the property each of you owned before the relationship, and any gifts or inheritances.
• Gather title documents, mortgage statements, account statements and recent valuations.
• Do not transfer or gift property while the issue is open; the court can look at transfers meant to defeat a claim.
• Speak with a lawyer early, because the deadlines are short.

Frequently asked questions