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What you need to know about the division of property

Property division occurs in the context of a divorce, a separation without divorce, or when individuals who are not married but have been residing together separate.

In the context of a Divorce or Separation the Matrimonial Property Act of Alberta governs how marital property is to be divided in Alberta. It does not matter if the parties are filing for a Divorce or not, a separate action can be commenced for the division of matrimonial property. Usually a claim for the division of matrimonial property is commenced at the same time as a Divorce proceeding and combining the two actions at the same time will result in one Court action and reduced filing fees.

The division of matrimonial property is a complex area of divorce that involves: identifying and valuing all assets and liabilities (whether obtained before the marriage, during the marriage, or after separation), valuing the assets and liabilities (the date of valuation of different assets is often a contentious point, but valuations of property before marriage, at the date of separation, and current values are often required), hiring experts (if needed) to help value complex assets (like companies and pensions), and then negotiating the division of those assets. The idea that matrimonial property is simply split "50/50" is an oversimplification of the issue because there are different rules for property acquired before the marriage and brought into the marriage (exemptions), how the increase in value of exempt property is dealt with, property acquired after the separation but before division, property in inherited or gifted to one individual, the valuation of complex issues, etc. People often forget to include some assets in division (for example many people forget to discuss CPP division) or forget to make proper adjustments to property (for example many people forget to adjust taxable assets downward when comparing to non-taxable assets, a $20,000 RRSP is not equivalent to $20,000 cash in a bank account). It is important to get proper legal advice regarding the division of marital assets.

For unmarried individuals there is no legislation (government written law) regarding the division of property in Alberta. There is however Case Law (or judge-made law) which governs this situation. Many people believe there is some quantitative threshold to be met before they can address this issue (i.e. you need to live together 3 years before you can apply for property division) but this is simply incorrect. This area of the law is often in flux but the current concept is that a "Joint Family Venture".

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