25th February 2013
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Lethbridge & Fort McMurray Lawyer – Mark R. Baril Discusses The Division of Property in Common Law Separation

Ending a common law relationship is much like ending a marriage. Many of the same decisions must be made. My January 12, 2013 article regarding separation and divorce discusses many of the decisions that may need to be made when ending a spousal relationship.  However, there is one major distinction between marriage and a common law relationship.  That difference lies in the division of property.

While the Matrimonial Property Act of Alberta assumes an equal division of property accumulated during the marriage (with some exceptions), there is no similar legislation with respect to property in common law relationships. However, by way of recent judgments, the courts are providing guidance in how such property should be divided.

In recent years there has been a movement by the courts to treat property in common law relationships in such a manner that there is no assumption of an equal division between the parties. The Supreme Court of Canada, along with the courts in Alberta have ruled that simply because two people choose to live together, this may not necessarily create a positive intention by the parties to contribute to and share in each other’s assets and liabilities. It is therefore necessary to evaluate the situation on the basis of unjust enrichment. For a recent example of this in Alberta, you might review the judgment in Rubin v. Gendemann, 2011 ABQB 71.

In evaluating a claim, the court must first determine whether the defending party has been enriched in some fashion during the course of the relationship.  Secondly, the court must determine whether the claiming party suffered a corresponding deprivation to the enrichment.  Finally, the court must determine whether there is an absence of any juristic reason (such as a contract or agreement) for the enrichment.  Without the ability to answer each of these questions favorably, there will likely be no equal division of property ordered.

No two situations are exactly alike. The facts from one situation will vary from another in such a manner that invariably leads to some uncertainty.   However, there are often some similarities that allow an experienced lawyer to help you evaluate the probability of success of claiming or defending a constructive trust claim.

If you are currently facing, or considering a common law separation or divorce in the province of Alberta or would like a second opinion regarding your situation I am more than happy to speak with you.  Call Mark Baril at 403-328-5577 or 780-790-2022, or e-mail at mrbaril@stringam.ca.

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Written by Mark Baril