Carscallen Blog

Family law changes coming for common law relationships

Posted by Carscallen LLP on Nov 5, 2019, 1:13:25 PM

Written by Grant W.D. Cameron and Ryan J. Barata

Changes are coming to family law in Alberta for common law relationships, effective January 1, 2020.

Bill 28, the Family Statutes Amendment Act [1], was passed by the provincial government in 2018 and primarily introduced amendments to family (domestic and matrimonial) law in Alberta in relation to three main areas:

  1. Adult interdependent partners (also referred to as “common law” or “unmarried” partners).
  2. Parent of an adult child with a disability: allowing a parent to apply for child support for their adult children with disabilities, regardless of the parent’s marital status (effective December 11, 2018).
  3. Married women: repealing the Married Women's Act [2], an obsolete law from 1922 (effective December 11, 2018).

This article will discuss some of the key changes to the law in the context of unmarried adult interdependent partners (“AIPs”). Other changes to family law introduced by Bill 28, which are outside of the scope of this article, will be discussed in future domestic and matrimonial law updates.

Matrimonial Property Act to become the Family Property Act.

Effective January 1, 2020, the Matrimonial Property Act [3] will be renamed the Family Property Act  (the “Act”), and will have the effect of extending Alberta’s property division laws to AIPs who are not married. Specifically, the presumption of an equal division of assets and liabilities currently applicable to married couples, subject to certain exemptions in the Act, will be extended to unmarried couples.

This is a significant change. Before this, the legislation in Alberta (which includes an easily-applicable formula for and the rules regarding the division of property at the end of a relationship) only applied to married couples and did not extend to AIPs. This legislative gap required AIPs to seek the court’s assistance at the end of an AIP relationship in order to divide property from the relationship, which created a disadvantage for many unmarried partners in the context of a separation.

As a result of Bill 28, the Act will now apply to both married and unmarried adult couples (if they meet the criteria under the Act) for the division of property at the end of a relationship. 

What is a “relationship of interdependence” under Alberta law?

The term adult interdependent partners” is defined under the relevant legislation [4] as two people who live together in a relationship of interdependence:

  • for a continuous period of at least three (3) years; or
  • of some permanence (and less than three years) if the couple has a child by birth or by adoption; or
  • if the couple has entered into an adult interdependent partner agreement.

A relationship of interdependence is defined under the legislation [5] as a relationship outside of marriage between two people that:

  • share one another's lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.

Considerations regarding whether a couple functions as an economic and domestic unit include[6]:

  • whether or not the persons have a conjugal relationship;
  • the degree of exclusivity of the relationship;
  • the conduct and habits of the persons in respect of household activities and living arrangements;
  • the degree to which the persons hold themselves out to others as an economic and domestic unit;
  • the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;
  • the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;
  • the degree of financial dependence or interdependence and any arrangements for financial support between the persons;
  • the care and support of children;
  • the ownership, use and acquisition of property.

Other changes to AIPs introduced by Bill 28 include:

  • Allowing AIPs to draft their own property division agreement rather than following the rules in the Act;
  • Applying property division rules to property acquired after beginning a relationship of interdependence (i.e., to AIPs and married couples who lived together prior to marrying each other).
  • Allowing an AIP two (2) years from the date they knew (or should have known) their adult interdependent relationship ended to make a claim for property division;
  • Specifying that AIPs can enter into a property ownership and division agreement that applies both during cohabitation (living together before marriage) and the time after marriage. However, agreements made during cohabitation would not apply after marriage unless that is the clear intention.

These changes in the legislation, and the ability for AIPs to opt out of the Bill 28 amendments regarding property division, have greatly increased the importance of parties ensuring they execute Cohabitation Agreements prior to obtaining AIP status to opt out of any presumption of assets and liabilities. Cohabitation Agreements can also be prepared in a manner that allows them to remain binding upon a subsequent marriage.

 

Carscallen LLP’s Domestic and Family Law Expertise

Our lawyers bring a corporate and commercial background to domestic and matrimonial law issues, and have a wealth of experience related to the division of property and other legal issues that arise at the end of a personal relationship (including common law relationships and marriage). Because we’re primarily a business law firm, we also have the wide range of expertise necessary for divorces, AIPs, matrimonial and any domestic issues involving businesses, including family corporations. We understand complex financial situations and we specialize in helping our clients resolve these matters as effectively as possible.

If you are unsure whether the new legislative amendments will affect you, or for any other matrimonial or family-law related issues, please contact any member of our Domestic and Family Law group for more information.

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[1] Bill 28: Family Statutes Amendment Act, 2018, SA 2018, c 18.

[2] Married Women's Act, RSA 2000, c M-6.

[3] Matrimonial Property Act, RSA 2000, c F-4.7.

[4] Adult Interdependent Relationships Act, SA 2002, c A-4.5 [“AIRA”], s. 3.

[5] AIRA s. 4.

[6] AIRA s. 1.

Topics: Matrimonial law

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