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Property Division for Unmarried Spouses: Family Property Act vs. Matrimonial Property Act 

  • Writer: Rylan Alston
    Rylan Alston
  • Nov 10
  • 3 min read

This article addresses how property is divided for unmarried couples in Alberta, focusing on the distinction between parties who separated before and after January 1, 2020. 


1. Adult Interdependent Partners (AIPs) 


In Alberta, what is commonly referred to as common-law partners is legally classified as Adult Interdependent Partners (AIPs) under the Adult Interdependent Relationships Act. 

An AIP relationship is established if two people: 


  1. Live together in a relationship of interdependence for at least three years. 

  2. Lived together for less than three years if the couple has a child together. 

  3. Have entered into a formal Adult Interdependent Partner Agreement. 


If there is no child and no formal agreement, establishing "interdependence" is a contextual analysis. The court examines factors like the relationship's exclusivity, how the couple presents to the community, and shared expenses/property use. Essentially, it assesses whether the couple is mutually relying on each other as if in a committed partnership. 


2. Property Division for AIPs and the Governing Legislation 


The distinction between AIPs and married spouses is crucial because it affects how property division is governed upon relationship breakdown. 


  1. Current Law: The division of family property for both married spouses and AIPs is governed by the Family Property Act (FPA). The FPA sets out what constitutes family property and the court's division methodology in Alberta. However, the FPA only governs the division of family property since it was brought into effect on January 1, 2020. 

  2. Pre-2020 Separations (Married Spouses): Married couples who separated or divorced before January 1, 2020, are governed by the Matrimonial Property Act (MPA), unless they opt for the FPA. 

  3. Pre-2020 Separations (AIPs): AIPs who separated before January 1, 2020, are not governed by the FPA or the MPA. Instead, courts rely on common law principles to determine property division. 


For AIPs separating before 2020, property division relies primarily on the common law principles of constructive trusts and unjust enrichment. This legislative gap can make property division less clear compared to statutory guidance. 


3. Unjust Enrichment 


As affirmed in the Supreme Court of Canada case, Kerr v Baranow, unjust enrichment occurs when one party benefits unfairly at the expense of the other without legal justification. Legal justifications that may negate unjust enrichment include: a demonstrated intention that the benefit was a gift, or a contract such as a prenuptial agreement.  


In family law, this principle of unjust enrichment often applies when both parties contribute to a joint family venture, yet one party retains an unfair proportion of the assets upon separation 

For example, consider a farm solely titled in one party’s name. If the other partner contributed significantly through labor on the farm, maintaining the family home, caring for the family, or financially contributing to the property, their contributions may go unrecognized if the asset division is based only on title. 


4. Constructive Trust 


A constructive trust is imposed when the court determines that the party who would unjustly gain is actually holding the property, in whole or in part, for the benefit of the other party. 

Returning to the farm example, the court could determine that the titled owner holds a portion of the farm's value in trust for the contributing partner. In essence, even though legal title rests with one person, that person is deemed to hold a share of the equity for the benefit of the other partner. 


In contrast, under the FPA, there is a presumption of equal division of family property, which is generally a more straightforward process. 



5. Conclusion 


If you and your non-married spouse separated before 2020, navigating property division under common law principles can be complex. Stokes Law LLP has expertise to guide parties through all forms of property division to achieve an economic resolution. 




 
 
 

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