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Common Law Property Rights in Alberta

Common Law Property Rights in Alberta

Divorce or separation always demands some sharing among both partners after separation. Property distribution is one of them. However, in different countries, property division has different laws and regulations.

Common-law partners are normally different in many cases, including property division from other partners. For example, in Alberta, their property rights and rules of property division make a huge difference.

Let’s talk about this common law property rights in Alberta in detail in the next sections of this article.

Top 10 Things to Know about Common Law Property in Alberta

Common law property rights in Alberta contain lots of rules and benefits for its citizens. They always try to ensure the safe and secure life of every single people. Here, we will discuss the top 10 things you should know about common law property rights in Alberta.

Treatment of the Division of Matrimonial Property and Division of Common Law Property is Now the Same in Alberta

Typically in Alberta, in terms of property division among married couples or common-law couples, people follow Family Property Act. However, to divide property between partners according to the family property act, people must go through a threshold test.

This threshold test is a new phenomenon in Alberta, though. Couples who have separated after the beginning of 2020, which means January 1st, 2020, must meet the test. On the contrary, couples who have got or will get separated after January 1st, 2020, need not appear in the test.

They can follow the laws and principles of common law, such as unjust enrichment, constructive trust, etc.

There is Not  a Minimum Time before the Partner You Live with Has an Interest in Your Property

If you are a citizen of Alberta, you might have heard that common law Alberta provides property rights only to those couples who have lived together for several years or at least one year.

But this is absolutely a wrong conception. There are no bindings of togetherness for being capable of getting property share. You might have heard about the law in many Canadian provinces that common-law partners must live together for three years before separation.

But common law in Alberta does not follow the same rule. Here, you can claim your property share even if you have lived together with your partner for only a few minutes.

Again, if you contribute something to your partner’s property, it becomes a requirement for your partner to compensate for your loss or contribution. There might be some other rules regarding this.

The notable thing is you can possess the right to have your property shared with your partner’s property.

The New Family Property Act is a Big Deal for Common Law Couples

In the previous section, we have already discussed the differences between separation processes before and after January 1st, 2020. The new law has been established for common-law partners from January 1st, 2020.

If any couple has separated before January 1st, 2020, they might have to wait for the court’s decision in case of property division. But the case is different with the couples who want to get separated after January 1st, 2020.

They must go through the threshold test, which demands two major criteria. First, they are- You and your partner have lived together for three years, and the other one is whether you have a child or any children during you have lived together.

Based on these two criteria, the family protection act of Alberta will decide your rights or shares in your partner’s property.

The Common Law Relationship Test for Unjust Enrichment

The couples who have been separated before January 1st, 2020, failed to appear in the threshold test. Therefore, for them, constructive law and unjust enrichment law are applicable while dividing their property.

Unjust enrichment demands for an agreement form where you will assure that the contribution you have made in your partner’s property (if there any) was utterly unconditional. You do not have any expectations for that share or contribution, and you are agreed with the law that you will not get any extra share of the property for your contribution. Thus, unjust enrichment law works for common-law couples.

The Test for the Joint Family Venture

A joint family venture provides some liberality for the common-law couples in Alberta. Common law rights Alberta in terms of joint family venture focuses on the contribution of both partners in their family purpose.

According to this venture, you and your partner are like a married couple, and you must contribute to your family. So, while dividing your property, a joint family venture keeps that contribution in mind.

The law also looks at how much you have contributed to your family and, of course, the circumstances.

Cohabitation Agreements can Protect You Before Problems Come Up

Alberta common law contains a big hassle-free way for couples who want to get separated. That is a cohabitation agreement.

If you and your partner or anyone of you are totally unknown to the rules and laws about common law in Alberta in terms of separation, a cohabitation agreement is the best option for you.

This agreement compiles all the necessary rules and information about how much and why you will get the share of your partner’s property once you get separated.

You can hire a professional lawyer and make a cohabitation agreement; the rest is upon the lawyer as well as the agreement themselves.

Common-Law Property is Now Divided Equally

In the case of property division, common law Alberta always goes with equality. So if you and your partner want to get separated in Alberta, you must have to meet the threshold test where you have to certify your togetherness and your children.

That means if you have lived together for long three years before separation and if you have given birth to any child during this period, you and your partner will get an equal share of the property, no matter what.

You Only Have Two Years from the Date of Separation to Claim Against Your Partner’s Assets

Once you have got separated from your partner, you need to claim your property share separately. And this claim should have been not more than two years from the separation date.

It is a must-do thing for you, remember. If you do not claim within this time limit for your property, the court might not accept your claim.

You Only Have Two Years from the Date of Separation to Claim Against Your Partner’s Assets

I hope you’ve already known about the time limit for filing a claim against your partner for your property share. You better contact a lawyer specialized in this field and file your case as soon as possible. The more you will do late in your case filing, the more complications you might face ahead.

There are Steps You Can Take to Protect Assets That You are Not on the Title for

Again, you have another option of having or not having on the title in the property division. When you have filed a claim against your partner for your share in his or her property, you have the freedom to send them a notice that you are claiming your share. You can notify your rights of your partner by taking this on title benefit.

Conclusion

So, overall, we have tried to discuss all the essential issues about common law property rights in Alberta. If you are thinking of starting a life together with your partner or if you are planning to get separated from your partner with whom you have lived till now, this information might help you out a lot. Last but not least, we recommend you hire a professional lawyer before filing any case or agreement.