Time Limit to Claim Property Division in Alberta

If you separated or divorced some time ago and have not dealt with property, you may worry that you have missed your chance. The Family Property Act sets time limits, and they run differently depending on your situation.

This article explains the main deadlines, when they start, and what to do if you are close to or past them. Because dates matter, speak with a lawyer promptly.

This article covers the law of Alberta.

Deadlines for married spouses

An application based on separation must be brought within 2 years after the date the spouses separated. Applications tied to divorce, nullity, judicial separation or irreconcilability generally must be brought within 2 years of the decree or declaration.

A family property order for spouses can be made after divorce, nullity, judicial separation or declaration of irreconcilability, or when the spouses have lived separate and apart for a continuous period of at least one year.

Under the Act, a spouse includes a former spouse, and also a party to a marriage even if the marriage is void or voidable. So being divorced does not by itself take you outside the Act, although the time limit still applies.

Deadlines for unmarried partners

Adult interdependent partners have 2 years from the date they knew, or should have known, that the relationship had ended. They can apply once they have become former partners, or earlier if the other partner is transferring property to defeat the claim or dissipating it.

Living under one roof or sharing some household services does not prevent a finding of separation. A resumed relationship of up to 90 days aimed at reconciliation does not restart the process.

Whether you count as an adult interdependent partner depends on the definition in the Adult Interdependent Relationships Act. Generally that means living together in a relationship of interdependence for at least 3 years, or for less than 3 years with some permanence if you have a child together, or for any period if you signed an adult interdependent partner agreement.

Special situations

For 6 months after that grant, the executor cannot distribute estate property to beneficiaries without the survivor's consent or a court order.

Older separations and agreements

Spouses who were divorced, or who were living separate and apart, before January 1, 2020 stay under the old Matrimonial Property Act, with some exceptions. For example, sections 15 and 18 of the new Act apply if the event or separation was on or after February 1, 2012. For partners, the Act applies only if they had not begun living separate and apart before that date. If you are in this group, confirm which rules and deadlines apply to you.

Property division agreements that were enforceable when signed remain enforceable.

A written agreement can also change how property is divided. It can displace Part 1 of the Act if it meets section 38, which requires each party to acknowledge in writing, apart from the other, that they understand its effect and intend to give up claims under the Act, and to sign freely before a lawyer who does not act for the other party. Adult interdependent partners may also sign their own agreement dividing property differently.

Starting a claim and protecting property

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. Form numbers are sometimes written differently, so confirm the current forms on the Alberta Courts website before you file.

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 Court can restrain a planned transfer or gift that could defeat a claim, even while the parties still live together, and can do so without notice to the other side.
• 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 that claim.

What to do next

• Work out your separation date and any decree or declaration date, and write them down.
• Note any reconciliation period and how long it lasted.
• Check whether any transfers or gifts of property were made recently.
• Gather financial records for both of you.
• Speak with a lawyer soon, since the missed-deadline consequences depend on the facts.

If a deadline may already have passed, a lawyer can tell you whether any exception or other route is available in your situation.

Frequently asked questions