Alberta common-law couples may find it easier to split in 2020

This article discusses upcoming changes in the way common-law couples divide property.

Numerous Canadian couples decide that they do not need a marriage license in order to solidify their commitment to each other. In fact, estimates indicate that approximately 300,000 people live as couples in common-law relationships here in Alberta.

Unfortunately, there are certain problems that have the potential to arise when some of these couples decide to go their separate ways. Even though the law recognizes their relationships, common-law couples do not currently have the same rights to property division as married couples do. For many couples, this leads to expensive and time-consuming court battles because the process is difficult to navigate. Fortunately, this could change on Jan. 1, 2020.

How things are now

Currently, one common-law spouse must file a claim that he or she is entitled to a portion of the assets held in a "constructive trust" by the other party. The claiming spouse then needs to show that he or she contributed to the accumulation of those assets in order to receive his or her share of them. He or she will also need to show the court that a "joint family venture" existed.

When determining whether one spouse should receive assets accumulated during a common-law relationship, the court looks at factors such as the following:

· Economic integration

· Making the family a priority

· Mutual effort

· Actual intent

If these elements, among others, are established, the court will grant a portion of the assets to the claiming party. However, in many cases, the expense associated with going through this process makes it cost-prohibitive for many facing these circumstances.

How things will be

This inequity for common-law couples may disappear next year. The correction began in 2015 when lawyers began advocating for changes in the law, which prompted a study to determine the scope of the problem. In June 2018, the provincial government received a report identifying 20 changes to the current law that would alleviate the burden on common-law couples when it comes to asset division. Sources indicate that 19 of those recommendations were included in the Family Statutes Amendment Act, or Bill 28.

Surveys of the public indicate that residents' beliefs are in line with the changes. The amendment will allow those in common-law relationships the same access to property division rules as married couples. This gives individuals the opportunity to determine whether their interests are best served by going to court or negotiating their own agreements.

How to proceed

Until the amendment to the act goes into effect, those in common-law relationships still may face an arduous process in court in order to divide their property. However, knowing that changes are coming, they could apply the factors courts consider for married couples to their situations. Understanding what may happen in court under the current system and under the new law could help in the negotiation process, which may still provide the best outcome when it comes to property division.

This analysis may not come easily due to the complexities involved. It would more than likely greatly benefit an individual in this position to discuss the matter with a lawyer well-versed in family law. During such a consultation, the interested party could gain an understanding of his or her individual rights and obligations along with an explanation of the options available. This knowledge could help guide an individual to the resolution best suited for his or her specific situation.