8th March 2010
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Common Law Separation–Dealing with Property

Common Law Separation: Dealing with Property
In Alberta, separating property on the breakdown of a “common-law” relationship is not as simple as dividing property between spouses who are formally married. The Matrimonial Property Act of Alberta presumes that property acquired during the marriage will be split “50-50”. Here, there is no similar law governing the division of property acquired during a common-law relationship.

Many factors will come into play in a common-law property division: how long the parties were together; what roles each played in the relationship; whether there were children; and most importantly, what each party contributed to the property acquired during the relationship.

In assessing all of these factors, the Court has to determine whether one party was ‘unjustly enriched’ – in other words, did that party suffer a deprivation because of the relationship; was the other party deprived in a corresponding manner; and is there a legal reason to justify the enrichment of the first party?

Sometimes these questions are easily answered – e.g., where one party worked outside of the home while the other stayed at home and looked after children. In these cases, the Court in Alberta tends to simply view this as a marriage in all but the name – and will usually divide the property evenly.

However, sometimes the contributions are not equal – where, for instance, both parties work but one party puts most of their earnings into property held in his or her name alone, while the other party does not (maybe they pay down debt they had before the relationship, or they put money into their own assets, like savings or RRSPs, etc.). In these situations, it may not be fair to simply divide all of the property evenly.

If your common-law relationship has broken down, it may not be easy to tell what your rights are and what the Court might decide a proper division of assets will be in your situation. Your best first step is to get some legal advice – and at Stringam Denecky, we have a wealth of experience in common-law separation issues, including the division of property. Call or e-mail Stephen Mogdan at (403) 328-5577 or scmogdan@stringam.ca, for advice on your situation.

 

Stephen C. Mogdan

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Written by Stephen Mogdan