Alberta Law Reform Institute Update: Final Report on Property Division
August 23, 2018
BY Gurinder Cheema
On June 27th 2018, the Alberta Law Reform Institute (ALRI) released Final Report 112, Property Division: Common-law Couples and Adult Interdependent Partners. Before the release of the final report, ALRI engaged in an “intensive” consultative process, which involved:
- conducting public opinion research on common law relationships and expectations for property division;
- roundtable discussions with family law lawyers and estates practitioners;
- publishing two Reports for Discussion—Property Division for Common Law Couples and Adult Interdependent Partners and Property Division: Living Together Before Marriage—with preliminary recommendations;
- conducting a series of online surveys to gather feedback on preliminary recommendations from the general public, lawyers and justice workers;
- follow-up meetings with lawyers’ groups to finalize recommendations; and
- receiving over 30 comments in writing or by phone.
The final report “makes recommendations to change the law for how common law couples divide property if their relationship breaks down.” The recommendations “are intended to make the law clearer and more predictable, promote settlement, and improve access to justice.” ALRI notes that change is needed because:
2016 Census data indicates that 320,260 Albertans consider themselves to be in common-law relationships. If common-law couples break up and cannot agree how to divide their property, they need to rely on complex judge-made law to divide their property. ALRI considers that the law of unjust enrichment is overly complicated, costly to litigate, and unpredictable. Legislated rules would better guide parties to make their own agreements and settle disputes.
The final report makes 20 recommendations, including:
- Legislated rules describing how partners may make an agreement about ownership and division of property;
- To be enforceable, an agreement about ownership and division of property should have to meet the same requirements that apply to agreements between spouses. In particular, the agreement should be in writing and each partner should meet separately with different lawyers to make the required acknowledgements;
- An option for the court to consider any other agreement in a decision about dividing property; and
- Legislated rules describing how property should be divided if partners do not have an agreement about ownership and division of property.
The final report also recommends that legislated rules should apply to adult interdependent partners and that these rules should be based on the Matrimonial Property Act, though with some exceptions. Other recommendations address: what threshold date should be used to determine exemptions for adult interdependent partners and spouses; what property should be exempt from division; and when a partner should be able to apply for a property division order.
For BCLI’s previous post on ALRI’s Report for Discussion on Property Division for Common Law Couples and Adult Interdependent Partners, please click here. For BCLI’s previous post on ALRI’s Report for Discussion on Property Division: Living Together Before Marriage, please click here.