One of the great contrasts that exists in Family Law in Alberta is the difference in treatment given to how common law couples divide their property upon separation.
For married couples in Alberta, upon divorce, their rights and obligations are set out according to the Matrimonial Property Act, legislation that governs how property should be divided upon Divorce. However, common law couples do not fall within this legislation and as a result, do not have the same certainty and guarantees that married couples do.
Rather, in Alberta, common law couples come within the Adult Interdependent Relationship Act. While this Act does define what constitutes a legal common law relationship, or an Adult Interdependent Partnership as it is termed in the Act, it does not provide any provisions that govern how property is to be divided by common law couples in the event their relationship breaks down. Rather, in Alberta, separating common law couples who wish to make a claim for a division of certain property against their ex-partner, are required to sue their ex-partner on the grounds of “unjust enrichment”.
This is significant difference from the entitlements of married couples. Under the Matrimonial Property Act, married couples have a presumption of entitlement to assets accumulated in the course of the marriage (subject to certain exceptions). Common law couples, on the other hand, have no presumption of entitlement and are put to the requirement of proving that their ex-partner was unjustly enriched, a finding that requires a three stage test satisfying that:
- The other partner was unjustly enriched by the contributions of the claiming partner;
- The claiming partner suffered a corresponding deprivation as result of their contributions; and
- There is no reason in law for this enrichment/deprivation.
This is much greater onus to demonstrate for common law partners, than the simple starting presumption that married parties benefit from.
Not all provinces have this disparity between married couples and common law couples. In British Columbia, common law couples have the same rights as married couples when it comes to dividing property on the breakdown of a relationship. While Alberta has maintained this contrast between married and common law couples, it has not gone unremarked and has been the topic of discussion amongst members of the legal community for quite some time. More recently, the Alberta Law Reform Institute, an independent organization that provides advice to the Government of Alberta, has released a Report for Discussion recommending policy changes to provide more certainty to common law couples through the creation of legislation that creates default rules for the division of property.