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Divorce: How is property divided between joint tenants?

In matters of asset division in divorce or separation, the law can be complicated. For example, when a couple divorces, there may be questions of ownership with regard to the family home. While a prenuptial agreement can help you avoid confusion by stating exactly what each spouse will receive in the unfortunate event that the marriage ends, many couples don't have such an agreement and may be unsure of their rights.

With that in mind, let's consider joint tenancy and tenancy-in-common, and how those title designations relate to the Matrimonial Property Act of Alberta (MPA).

If you own a home prior to your marriage, then you might consider naming yourself and your spouse as joint tenants in title when your spouse moves in. Likewise, when a couple buys a property together, they may name themselves as joint tenants.

Each person named as a joint tenant in title is regarded as a lifetime owner of the whole property. A joint tenant is not allowed to sell the property without the consent of the other joint tenant. Joint tenancy also gives both parties survivorship rights to ownership. In other words, if one spouse dies, the other spouse named as joint tenant will retain ownership of the entire property.

Contrast joint tenancy with tenancy-in-common. Tenants-in-common each own an undivided percentage of the property, and consent from the other tenant- or tenants-in-common isn't needed for one party to dispose of his or her share.

Some spouses choose to be named as tenants-in-common. In such a case, one spouse may claim half of the property's value, while the other spouse claims the other half. More than two people can also be named as tenants-in-common, with each person owning a different percentage.

In the process of dividing marital assets in a divorce, the MPA allows for some kinds of property to be exempt from division. For example, property acquired prior to the marriage may be exempt. However, if premarital assets are transferred to both spouses in joint tenancy, then each of the spouses may claim a share of the otherwise exempted property in the event of divorce.

For more on property division for non-married partners, please see our article, "Joint Tenancy and Division of Property -- It's Complicated."

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