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New Calgary Common Law Property Rights

New Calgary Common Law Property Rights are coming soon. Peter Graburn explains the New Calgary Common Law Property Rights which will have unmarried couples receive the same matrimonial property division rights as married couples. 

PROPOSED CHANGES TO COMMON LAW RIGHTS IN ALBERTA – A Real Game-Changer

In previous posts I have discussed the different ways married and “common- law” couples are treated under the law in Alberta, particularly regarding how their property is divided at the end of their relationship. Read Calgary Matrimonial Property Division Lawyers. This article explains that unmarried couples currently have weaker property division claims than married couples do. Some past cases said choosing to remain unmarried is a choice but the other view is that one party’s choice might be the other party’s exploitation. A recent newspaper article commented on recommendations for change. The Alberta government has announced big changes to address the unequal treatment of married couples compared to unmarried couples. Our Calgary family lawyers handle medium to high net worth financial cases as well as child parenting time disputes,.

New Calgary Common Law Property Rights

Peter Graburn senior Vancouver Calgary High Net Worth Divorce lawyer 403 444 5503

Simply stated, married couples divide their property (both assets and debts) equally under the Matrimonial Property Act (MPA).  But common-law couples (legally called “Adult Interdependent Partners”, or AIPs) do not have the same rights to the division of property as the MPA only applies to married couples, not AIPs. But that may be changing.

New Calgary Common Law Property Rights 403 444 5503

On November 21, 2018, the Alberta government announced plans to change various pieces of legislation affecting family law in the province, including the MPA.  Bill 28, The Family Statutes Amendment Act, is designed to modernize family law legislation in the areas of property division and child support to make it more fair and inclusive.  Bill 28 proposes changes to 3 pieces of government legislation:

Matrimonial Property Act Bill 28 would amend the MPA to extend the current property division rules applicable to married couples to AIPs by:

● renaming the Act the Family Property Act;

● have the Act apply to both AIPs and married couples;

● clarify that property division rules will apply to any property acquired after the start of the relationship (whether AIPs or marriage);

● give AIPs 2 years from the date their partnership ended to make a claim for property division;

● clarify that couples can enter into property division agreements that may apply both following cohabitation (for AIPs) and divorce (for married couples);

● delaying implementation of these changes until January 1, 2020 (to allow for public  awareness of these changes);

Family Law Act Bill 28 would amend the FLA to expand the circumstances where unmarried parents can make an application for ongoing child support for their dependent adult children (ie. over 18) with a disability or illness or who are full-time students (the FLA currently states such applications can only be made for adult children who are full-time students aged 18-22) by:

● removing the age limit for adult child support;

● allow adult children who are still dependant on their parents due to a disability or “other cause” to be eligible for child support;

Married Womens Act Bill 28 would also repeal the anachronistic and sexist MWA passed in 1922 that (while granting women the right to own property and sign contracts) still treated married couples as one person under the law.

New Calgary Common Law Property Rights 403 444 5503

So, would the proposed amendments to the Matrimonial Property Act (and also to the Family Law Act) recently made by the Alberta government change much in the every-day family law process for common- law couples (AIPs) in Alberta? Absolutely. The New Calgary Common Law Property Rights are clearly a gamechanger that brings Alberta in line with the modern reality of more unmarried couples living in committed relationships. Currently, if common-law couples cannot agree how to divide their property on the breakdown of their relationship, they are faced with going through a very long and detailed legal process (often involving the legal concepts of constructive trust, unjust enrichment, and joint family venture) to resolve this dispute. The proposed changes to the MPA would extend the same legislative rules (designed to clarify and simplify the law) that apply to married couples to those common-law couples (AIPs).

New Calgary Common Law Property Rights 403 444 5503

The proposed changes to the Matrimonial Property Act (and also one reason why the changes will not come into effect until January 2020) highlight the importance of considering entering into an agreement with your current or future partner about how your property will be divided upon the unfortunate breakdown of that partnership (as well as other considerations including financial support).  Cohabitation, Prenuptial and Marriage Contracts allow the partners to draft their own agreement to structure the division of their property the way they want rather than follow the government created rules for such division of property.

Calgary Common Law Rights lawyers can assist their clients to understand the different ways AIPs and married couples are treated under the law in Alberta and assist them to make sure their wishes and preferences are respected when they differ from the ever-changing government legislated rules that affect the resolution of their family law matters.

It remains to be seen whether these New Calgary Common Law Property Rights changes will start retrospectively.

If you have questions concerning the New Calgary Common Law Property Rights contact Peter Graburn today at 403 444 5503

 

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