Division of Matrimonial Property

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This topic discusses how to divide your property after marriage breakdown.

You and your spouse are required to divide matrimonial property that has accumulated over your marriage. Some property may be exempt. Some property might be shareable on an other-than-50/50 basis. Most property and debt are divided 50/50. The Matrimonial Property Act does not use “fault” as a way to evaluate each spouse’s entitlement to division of property.

There are 2 methods you may use to divide your matrimonial property:

1. You and your spouse can agree on the division of your property and have a lawyer draw up a contract to record the agreement.

The contract that provides the details of your property agreement may be called a Separation Agreement, a Separation Contract, a Divorce and Property Contract or Minutes of Settlement. You and your spouse are required to have independent legal advice regarding the agreement for division of property. Each lawyer will sign a certificate of independent legal advice after reviewing the contract with you. Certain rights are provided for each person under the Matrimonial Property Act and you must be made aware of these rights. Your lawyer will tell you what rights you have under the law and what rights you can contract away. There are some rights that you cannot contract away. For example, you cannot contract out of the right to ask the Court for the exclusive use of the matrimonial home if required in future. You would then request an exclusive Matrimonial Home Possession Order if you need to stay in the home with your children.

You should consult with a lawyer to protect your rights, ensure you understand what rights you may or may not be giving up, and to ensure the contract is prepared so that it is legally binding. For example, the contract must be in writing and must be consensual. You and your spouse must have the mental capacity to enter into a contract Full disclosure of all property owned by each spouse must be made. You must be informed of all property owned, and debts owed by your spouse and you must disclose all of your property and debt to your spouse. The contract must be signed separately by each person in front of his or her lawyers and each lawyer must sign a Certificate confirming that they gave independent legal advice before you signed the contract. If you do not meet all the requirements of the Act for proper execution of the contract, it can be challenged.

1. If you and your spouse cannot agree, then you may bring an application to the Court of Queen’s Bench for an Order for the distribution of your matrimonial property.

Before you can apply to the Court, you must both have been habitually resident in Alberta at the time of your marriage, or at the end of your marriage. You start your legal action by filing a Statement of Claim at the Court of Queen’s Bench. If you are getting a divorce you may bring the claim for matrimonial property action at the same time, or you may start either one first.

There are important time limitations you must consider when making a claim for property distribution. If you start and complete your divorce proceedings without a property distribution claim, you must bring the property distribution claim within 2 years of the granting of the Divorce Judgment.

You and your spouse must provide a Statement of all property you own alone or with another person to the Court and to the other spouse. The Statement must include the property that was sold or given away within the 1 year prior to the application for property distribution.

Once an action has been started, neither spouse may dispose or encumber of any property without an Order of the Court or the consent of the other spouse. Either spouse cannot make a gift, or transfer the property to anyone else before the Court makes the Order.

In Alberta, the value of your property is determined at the date of the trial.