Spouses may have questions about the law and how to divide property at the end of a marriage. Family law can be complicated, and understanding the law, as well as your options, is an important first step. This article contains information for those who were legally married.
Matrimonial property refers to all property that accumulates during a marriage. The property can be jointly owned, or can be owned by one spouse. When couples divorce, matrimonial property is usually divided equally between the spouses. Most of the time, property and debt and divided 50/50. Some property may be exempt, whereas you may be able to share other property on something other than a 50/50 basis.
In Alberta, the Matrimonial Property Act governs how property will be divided if a marriage breaks down. It applies only to those who have been legally married, and it gives couples the option of determining their own property settlement rather that going to court. When it comes to dividing matrimonial property, the Act doesn’t use “fault” to evaluate each spouse’s entitlement.
Married couples can enter into agreements about how property will be divided should their marriage end. Such agreements can be made at any time during the relationship, including after separation; however, the agreement must fulfill the requirements of the Matrimonial Property Act. This ensures that it is enforceable.
There are various types of property agreements, from those a couple may determine themselves, to mediation, collaborative family law and court. For the purposes of this article, we will assume that you and your spouse have come to a settlement agreement yourselves.
If you and your spouse have a pre-existing agreement outlining division of property, follow these steps.
- Make a list of all the property you own.
Include property and assets you owned prior to your marriage, during your marriage and after your separation. Include when you got the property and what you paid for it. Also be sure to include any property located outside Alberta. If you’re negotiating your own agreement, you can choose a date with your spouse: any property or debt acquired after that date can be excluded, provided that you both agree. - Value the property.
Property values change over time. For example, your house or vehicle may not be worth what it was a year ago. A judge will divide property based on the value of the property at the time of trial. However, if you and your spouse are determining your settlement agreement on your own, you can choose a date on which you both agree. Many couples choose to use the value at the time of separation.To determine the value of bank accounts, investments, mortgages, credit cards or loans, look to your statements. You can use appraisals to determine the value of real estate. To assess the value of vehicles or furniture, look to similar items offered for sale. - Share your property and financial information with your spouse.
This is called providing financial disclosure. Even if you own property with someone else, or if the property is outside Alberta, you must let your spouse know. You also have to share information about any property you’ve sold or given away in the last year. The most common way to do this is through a Notice to Disclose. - Sort all the property into categories based on the Matrimonial Property Act.
- Do the calculations.
The intent of the Matrimonial Property Act is to divide property and assets fairly between both spouses. - Determine how property will be divided.
Often, one party will want particular items the other party doesn’t. This is a good starting place when deciding what will be divided or sold, as well as how to share any proceeds or deal with any losses. Assets should be divided so that each spouse holds property whose value is close to the value of property held by the other spouse. Where any inequality exists, one spouse will often pay the other to balance the division.
Once you and your spouse have come to an agreement, you need to ensure that it is enforceable. This means that you and your spouse must each meet with a separate lawyer and acknowledge that
- you are aware of the nature and the effect of the agreement
- you are willing to give up possible future claims to the other partner’s property
- you are executing the agreement freely and voluntarily, and not being pressured into signing
Lift Legal can draw up a contract that provides the details of your property agreement. This contract may be called a Separation Agreement, a Separation Contract, a Divorce and Property Contract, or Minutes of Settlement.
You and your spouse must each have independent legal advice regarding the agreement for division of property: after reviewing the contract with you, each lawyer will sign a certificate of independent legal advice. Your lawyer will also tell you what rights you have under the Matrimonial Property Act and what rights you can contract away.
Property division is complicated. Consult with the Lift Legal team of family lawyers. We’ll work to protect your rights, help you understand what rights you may or may not be giving up, and ensure that the prepared contract is legally binding.
Disclaimer:
The information on this blog and website is provided by Lift Legal for educational purposes only. It is intended to give readers a general understanding of the law, not to provide specific legal advice. Information contained in these pages should not be used in place of competent legal advice from a licensed, practising lawyer in Alberta. Furthermore, by using this blog and website, you understand that no lawyer-client relationship exists between you and Lift Legal.
