Changes may soon be coming to Alberta’s legal framework surrounding common-law couples and how their assets are divided during separation, according to a new piece of tabled legislation titled the Family Statutes Amendment Act, 2018, which was first revealed on November 21st this year. The piece of legislation seeks to fill a gap in family law, chiefly how property division is to be handled following the breakdown of a common-law relationship. We last covered changes of separation laws in September, when the introduction of the Divorce Act (Bill C-78) shifted the focus of divorce proceedings to the well-being of any children caught in the middle and challenged ‘custody’ as a blanket term.
Common-Law Under the Current Framework
Whether a non-marital adult relationship is considered common-law or not depends on the province in question. In Alberta, a relationship becomes common-law under three circumstances, under which adult partners:
- Live together for three years
- Live together and have a child
- Decide to enter into an interdependent relationship
Under the current legal framework, while there are automatic property division mechanism for formally married couples seeking divorce, these provisions are not automatic for common law separations. While there is nothing legally preventing either party from seeking some form of asset division in court, finances are often tight during a separation. This is true for both married and common-law couples. Additionally, child-support ends automatically once a dependent turns 18 years of age, even if the dependent is disabled either mentally or physically in a manner that renders them reliant on their primary caregiver. Extending support for dependents in this situation cannot be done and any division of assets must be performed expensively through independent litigation. Although the rights enjoyed by married and common-law couples are similar, they are not the same in these regards, leaving common-law couples at a disadvantage.
Changes Under Proposed Legislation
The Family Statutes Amendment Act, would repeal and replace the nearly hundred-year-old Married Woman’s Act, which was passed in 1922. This antique law was the original Act which enabled women to sign contracts and own property, provisions which have since been made redundant by newer laws. The intent of the introduced legislation is to ameliorate the gap between the rights extended to married and common-law couples, which it seeks to improve by applying the same property rules to both types of separation and permitting caregivers to apply for support for adult dependents with illnesses or disabilities. In the case of dividing assets, provisions contained within the Matrimonial Property Act pertaining to the division of property would be extended equally to common-law partners undergoing separation. More specifically, this means that property gained during the relationship would be divided equally. This does not apply to property owned or acquired prior to becoming common-law. If passed, these changes are to take effect January 1st, 2020, to allow Albertans time to acquaint themselves with the legal changes.
If you or someone you know are in need of legal representation for a divorce, or is simply in need of independent legal advice for family law, don’t hesitate, contact Right Legal today to find the right lawyer for you.
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Cindy Weller 