Common-Law Couples Subject to Family Property Division in Alberta

Relationships can take many different forms. Partners may choose to avoid getting married or separately manage their own assets. However, that does not mean they are exempt from Alberta’s family property division regime. For common-law couples that meet certain criteria, they will be considered adult interdependent partners. The family property regime in Alberta will apply to them upon separation, even if they have different arrangements in mind. Therefore, common-law couples need to be aware of Alberta’s family property regime, as it can apply to their situation upon termination. By understanding these consequences, common-law couples can also consider if establishing terms of a separation agreement may be better aligned with their expectations upon the breakdown of the relationship. 

This post will discuss when common-law couples are considered adult interdependent relationships, to which the family property division regime applies. We will also discuss an overview of the Alberta family property regime to understand what can happen to family property when common-law partners separate. This post will provide key takeaways for common-law partners who are separating to help them understand their entitlements under the family property regime in Alberta.

What is an adult interdependent relationship in Alberta?

In Alberta, common-law relationships are called adult interdependent relationships, governed by the Adult Interdependent Relationships Act (AIRA). A relationship must meet certain criteria before it is considered an adult interdependent relationship, which is important to determine as it will establish what legal consequences may arise.

Relationship must be three years or longer

Under section 3(1) of the AIRA, to find that there is an adult interdependent relationship, the parties must have lived together for a continuous period of 3 years or longer in a “relationship of interdependence.” 

The parties must have lived together for at least 3 years. However, it is possible to find an adult interdependent relationship even if the parties had separate households, as this depends on the parties’ circumstances. For example, it may not have been socially acceptable for a couple to live together in some cases despite being in a relationship of interdependence.

The relationship must also be continuous, although brief breaks in a relationship are not necessarily considered the end of the relationship to determine the length of the relationship. 

Factors for a “relationship of interdependence”

Parties are considered to be in a relationship of interdependence where they:

1. Share in each other’s lives;
2. Are emotionally committed to one another; and 
3. Function as an economic and domestic unit.

To determine if the parties functioned as an economic and domestic unit during the relationship, the court will also consider the following factors taken as a whole, if applicable:

1. Whether or not the parties have a conjugal (i.e. marriage-like) relationship
2. The degree of exclusivity of the relationship; 
3. The parties’ habits and conduct regarding household activities and living arrangements;
4. The extent to which the parties presented themselves to others as an economic and domestic unit; 
5. The extent to which the parties formalized their legal obligations, intentions, and responsibilities to each other; 
6. The extent of direct and indirect contributions to their mutual well-being;
7. The degree of financial dependence or interdependence, including any arrangements for financial support between the parties; 
8. The care and support of children, if any; 
9. The ownership, use, and acquisition of property during the relationship. 

None of the factors alone would be determinative in finding an adult interdependent relationship exists, and the court must consider the factors given the overall context.

Adult interdependent partners are considered separated when they live separate and apart for more than 1 year, and one or both of the parties intend to end the relationship. 

Family Property Division Regime in Alberta – an overview 

Under section 7 of the Family Property Act, property owned by either or both adult interdependent partners can be divided according to the family property regime in Alberta. This means that anything considered family property will generally be divided equally between the parties unless circumstances suggest that it would be unjust or inequitable to do so.

What are the factors for unequal property division for common-law couples?

Section 8 of the Family Property Act sets out the factors for the court to determine if there should be an unequal division of family property between the parties. It is important to note that unequal division is often the exception and not the rule.

The following are factors for the court to decide if there should be an unequal division of property between adult interdependent partners:

1. The contribution made by each partner to the relationship and welfare of the family, including contributions as a homemaker or parent;
2. Contributions, whether financial or otherwise, made by a partner directly or indirectly to acquire, conserve, improve property, or to operate, or manage a business, farm or enterprise owned or operated by one or both partners and any other person; 
3. The income, earning capacity, liabilities, obligations, property, and financial resources that each partner had at the beginning of the relationship and at the time of trial; 
4. The length of the parties’ relationship; 
5. Any property acquired after the parties separated; 
6. Any verbal or written agreements regarding property; 
7. Any transfers of property to the third party; 
8. Prior court orders concerning property division; 
9. Tax liabilities arising due to the transfer or sale of property; 
10. Any property that has been dissipated to the detriment of the other partner;
11. Any other relevant fact or circumstance. 

Key Takeaways 

Parties who are unmarried may fall under the category of adult interdependent relationships. As a result, they may be subject to Alberta’s family property division regime if they separate. Generally, this means that any property owned by one or both parties may be equally divided between the parties, even if that is not what they intended. There may also be additional factors that may make an unequal division more appropriate, and the court will consider factors similar to those assessed upon the breakdown of a marriage. If the parties are seeking a different arrangement than the default set out under the family property regime in Alberta, they should consider a cohabitation or separation agreement to define their own terms if the parties end up separating.

Mincher Koeman Lawyers Can Assist with Family Property Division for Common-law Partners

There is no one-size-fits-all approach to the various forms of relationships that exist. Even if the parties are not formally married, legal consequences may arise, including claims for partner support or property claims. Given that these findings depend on the case’s unique circumstances, you should contact one of our family law lawyers at Mincher Koeman, who are experienced in assisting parties with issues involving adult interdependent relationships. Our Calgary family law lawyers are dedicated to finding your best resolution.
To book a consultation, please contact us online or by phone at 403-910-3000.