Unequal Division of Matrimonial Property
Under Albertas Matrimonial Property Act, there is a presumption that all property acquired during marriage is divided equally between the spouses, as long as the property is not exempt (see my post on exempt property). It does not matter if the property is held in joint names or in one spouses name alone. However, there may be an unequal division of the property if it would not be just and equitable to divide it equally.
If a court is going to distribute assets unequally between the spouses, it must consider the factors listed in Section 8 of the Matrimonial Property Act. The list of factors is lengthy and it is not exhaustive, which means that the Court can consider virtually any relevant fact to determine whether property should be divided unequally.
It is a common misconception that the date of valuation of assets for division is the date of separation. In Alberta, this is not the case. This means that property acquired by a spouse after the date of separation is eligible for distribution under the Matrimonial Property Act. That being said, one of the factors for unequal division is whether the property was acquired after the date of separation. This means that assets acquired post-separation will likely be divided unequally, especially if the property is the product of the sole effort of one spouse. For example, in the Alberta Court of Queens Bench case Adams v. Adams, 2011 ABQB 306, the wife retained 100% of the assets she acquired after the separation.
Despite the example above, there is no guarantee that post-separation property will not be divided 50/50. As such, it is recommended that couples take steps to complete their property division as soon as possible after the date of separation. Ideally, when couples are able to agree, they will enter into a binding Matrimonial Property Agreement soon after their separation. Putting this off can needlessly complicate matters and lead to unexpected results.
The family and divorce lawyers at Calgarys firm of RCM LLP have extensive experience dealing with complex matrimonial property issues. Please call our office for a paid consultation to determine your matrimonial property rights.’