The Family Property Act, "FPA", sets out the law used to classify and distribute property when a marriage ends. The FPA provides rules and procedures for who gets which property, who gets to live in the home, who gets to keep household goods – it deals with almost all of the property issues that a family may have.
In Alberta the Division of Family Property applies to all of the property that is being divided between the spouses and might include property bought by either spouse before, during, or after the marriage.
Family Property essentials
An application to divide property under the MPA can be made by itself or with another application (such as divorce, judicial separation, or annulment). A spouse can make an application if he/she has separated but has not yet divorced, or if he/she has begun divorce proceedings.
There are important time limits to follow when starting an application for the division of property after separation. Before a divorce judgment but after separation, an application for the division of property must be made within two years of the date of separation.
If a divorce judgment has been given, any application for property division under the MPA must be made within two years of receiving the judgment or Court Order.
If a spouse is suspected of selling or giving away property (i.e. to keep it from the other spouse) legal action must begin within one year of the date the property was sold or given away. The Court may order the spouse who sold or gave away the property to repay the other spouse or may divide the rest of the property in a way that makes sure both spouses end up with equal amounts.
‘Matrimonial Property’ is all the property that is acquired by either or both spouses during the marriage. It can be property bought by both spouses together, as a family, or individually. Generally, the matrimonial property is divided equally between spouses when a marriage ends, unless the result of this equal division would be unfair.
- Certain kinds of property acquired before the marriage may not be divided when a marriage ends. This is called ‘exempt property’.
- However, sometimes the increase in the value of exempt property may be considered ‘matrimonial property’. An example of this may be that you owned a condo worth $20,000 at the beginning of the marriage. That amount may be exempt from division but if the condo increased in value, the increase may be divided between the spouses.
- This increase in value may not automatically lead to an equal split. The Court will make a decision based on what the Court considers to be fair.
- the matrimonial home;
- household goods (this includes almost all personal property used by family members);
- R.R.S.P. and employment pensions;
- business interests;
- investments, stocks, bonds;
- other property that has been purchased during the marriage or brought into the matrimonial relationship, or used for the mutual benefit of the spouses;
- debt and
- bank accounts.
This is not a complete list and there may be other property that a Court or the partners may decide to divide at the time of separation.
- property acquired by one spouse before the marriage;
- property one spouse received as a gift;
- property one spouse received by inheritance;
- an award or settlement for damages in tort law received by one spouse (i.e. money paid for pain and suffering in an automobile accident) unless the
- award was meant to compensate both spouses.
- No claim by the other spouse can be made on anything that is listed as property which may not be divided unless it has been “brought into the marriage”.
If the property is “brought into the marriage” it is then considered to be the property of both spouses and can be divided. An example of “bringing the property into the marriage” would be taking a home purchased by one spouse before the marriage and putting it under both spouse’s names.
- Pensions are considered property under the MPA.
- There are two types of pensions: private pensions (by employment) and the Canada Pension Plan.
- Certain pensions may have legislation that determines how the pension will be divided when a marriage ends.
An Exclusive Possession Order is given when spouses cannot live together peacefully, but neither is willing to leave the home. This essentially allows one spouse to keep the other out of the house. This is helpful if one spouse wants to be able to live in the house after separation either alone or with children, one option is to ask the Court for an Exclusive Possession Order.
To get an Exclusive Possession Order an application for the matrimonial home may be made ‘ex parte’ (i.e. without telling the other spouse) if the Court finds that there is potential danger to the spouse making the application or to a child living in the home. If the Court does not believe there is danger in making the application then the other spouse must be told about the application. A Court can grant an Order for exclusive possession even without a threat of danger present.