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August 2013 Archives

When Does Child Support End in Alberta?

Our Family Law clients often ask whether child support terminates automatically when children turn 18. The Divorce Act states that child support shall be paid for so long as a child who is over the age of 18 years of age is unable to obtain the necessaries of life. The Family Law Act uses similar criteria for children whose parents are not married.

Applying For An Advance Of Matrimonial Property

In Family Law, division of matrimonial property often involves protracted litigation. In certain circumstances a party can apply to the courts to have an interim advance of funds made to them from the matrimonial property prior to an order or agreement setting out the final division of the matrimonial property. Whether or not the court will allow  an advance of funds is highly discretionary, meaning the Judge hearing the matter will look at the facts of the case and determine whether he/she thinks that it is wise or fair to allowan advance of funds from the matrimonial property. Some of the factors the Judge will consider include:

A Quick Review of Dower Rights in Alberta

A confusing topic in Family Law is the issue of dower rights, often mis-described as "dowry rights". Failure to deal with dower rights after separation can result in unexpected and expensive consequences. Dower rights are a left-over from English law imported into Canada at Confederation. Originally, the concept of dower provided a deceased man's widow with the use of his real estate for the rest of her life. The purpose of dower was to prevent women and their children from becoming destitute or thrown out on the street after the death of their husbands. Dower rights have since been expanded to benefit both husbands and wives. Although most Provinces have dispensed with dower rights, they remain alive and well in Alberta. Dower rights occur only in marriage - not in common-law or "Adult Interdependent Partner" relationships. Dower rights terminate upon divorce or if the party holding the interest provides a Release of Dower that can be registered on title to the property in question.

What is a Common Law Relationship?

In Family Law there is a popular misconception that couples who live together for a period of six months or more achieve "common law" status and acquire rights and obligations similar to married spouses. In Alberta, there is no formal definition of what constitutes a common law relationship but we have "Adult Interdependent Partners" as defined in the Adult Interdependent Relationships Act. There are 3 ways to become an AIP.

Changes to Estate Law in Alberta

In February, 2012, the Alberta government proclaimed the Wills and Succession Act. This legislation replaced a patchwork of previous legislation. It also made significant changes to well established practices in the area of Estate law and Matrimonial law. Anyone who is now separated or anticipates becoming separated (whether in a married or a "common-law" relationship) should seek advice about the impact of the Wills and Succession Act.

Are Pre-Nuptial Agreements Enforceable?

We've recently been asked whether Pre-Nuptial Agreements are enforceable, or if they automatically "expire" after a certain period of time. The short answer is that Pre-Nuptial Agreements are a valuable tool by which assets can be preserved in the event of divorce and do not expire unless terminated by written agreement. Pre-nuptial Agreements are particularly useful in the case of second or third marriages where one or both parties want to avoid division under the Matrimonial Property Act and preserve assets for their children. Although Pre-Nuptial Agreements aren't very romantic, they certainly fit the old adage: "an ounce of prevention is worth a pound of cure!"

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