When it comes to common law relationships, Alberta family law has one of the most expansive definitions in Canada.
With the 2003 Adult Interdependent Relationships Act, Alberta codified the rights and responsibilities common law relationships. And since the transition from the Matrimonial Property Act to the Family Property Act in 2020, property division rules for common law relationships have changed.
What does common law mean in Alberta?
Under Alberta family law, a couple is considered common law, or in an Adult Interdependent Relationship if one of the following applies to them:
- They have lived together in a relationship of interdependence for at least three years
- They have lived together with some degree of permanence and have a child together
- They have entered into an Adult Interdependent Partner agreement
A relationship doesn’t need to be romantic or conjugal in order to qualify as an Adult Interdependent Relationship. The Adult Interdependent Relationships Act can consider minors, relatives and platonic friends as interdependent relationships under the right circumstances.
How do you prove common law in Alberta?
With the Adult Interdependent Relationships Act casting such a wide net, it can be tricky to know if your relationship is included.
In the absence of a signed Adult Interdependent Partner agreement, a relationship of interdependence is determined when two people aren’t married, but they:
- share one another’s lives;
- are emotionally committed to one another; and
- function as an economic and domestic unit.
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Some of the factors used to determine whether two people qualify as an economic and domestic unit include the exclusivity of the relationship and how they behave when it comes to household activities and living arrangements.
Whether they present themselves to others as being in a marriage-like relationship plays a big part, as well as the way they care for their children or mix their finances.
Could my housemate be considered my adult interdependent partner?
Maybe. A relationship doesn’t have to be conjugal in nature, but if you’re trying to prove you are or were in a common law relationship, it’s a bit easier if it was romantic. Caretakers don’t qualify because they’re being compensated to live with their charge.
The only way for two people who are related to each other (either by blood or adoption) to become adult interdependent partners is to sign a formal Adult Interdependent Partner agreement.
How do you end adult interdependent relationships in Alberta?
There are a few ways to indicate the end of an Adult Interdependent Relationship under Alberta family law. Some are as simple as getting married or signing an agreement saying that you’re no longer adult interdependent partners. Others require declarations of irreconcilability. If you’re not sure about how to end your Adult Interdependent Relationship, talk to a family law lawyer.
What is a common law spouse entitled to in Alberta?
In Alberta, common law partners that qualify as Adult Interdependent Relationships are entitled to spousal support, property division and an inheritance in much the same way as a married spouse would be.
There are also some other things a partner would be considered entitled to, such as the Assured Income for Severely Handicapped (AISH) benefit and other insurance benefits. Every situation has its own nuances so it’s always best to seek out legal advice to find out what applies to you.
How are common law assets divided in Alberta?
Property division between interdependent partners (as covered by Alberta’s Family Property Act) basically ensures that people in a common law relationship have the same legal rights and protections as a married person would have.
How does the Family Property Act divide property and assets between adult interdependent partners?
Generally speaking, each partner keeps the property they brought into the relationship, and some of the things they acquired during the relationship (like gifts, inheritances, insurable payouts or court awards). In most cases, they get to keep the value of that property as of the date it was received. From there, things get more complicated.
For instance, the increase in value of property brought into a relationship might be divided unequally. In contrast, debt and property obtained as a couple during the relationship tends to be split equally.
There really is no cut and dry rule for the division of property, so if it’s time to determine who gets what, you may want to consider legal or professional advice.
How do I protect my assets in a common law relationship in Alberta?
When you’re entering a common law relationship, one of the best ways to protect your assets is to sign a cohabitation agreement with your partner. A cohabitation agreement is a contract between you and your partner that sets out how you divide your property and deal with support if you separate in the future.
Do Alberta’s Adult Interdependent Relationship rules impact legally married couples?
Yes. Married spouses who lived together before they got married should know that the period of property division actually extends to the whole relationship, not just the years that they’re married.
What legal rights does a common law spouse have when their partner dies in Alberta?
Common law partners are typically considered dependents for the Wills and Succession Act, meaning that a surviving partner can apply for maintenance and support from the estate if the deceased partner didn’t make adequate provisions for them in their will, or if they died intestate.
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What happens when a common law partner dies with a will in Alberta?
Generally speaking, the estate is divided according to the will. However, the surviving partner does have certain legal rights and responsibilities regardless of what is in the will.
According to the Wills and Succession Act, in addition to being able to request support from the estate, if the surviving partner isn’t on the title of the family home they live in, they have a right to stay for 90 days starting when the partner dies.
The estate of the deceased is meant to cover the mortgage payments or rental costs for that time.
What happens when a common law spouse dies without a will in Alberta?
When this happens, it means that no one has been appointed to deal with the estate and there is no formal, written record of what the deceased wanted to happen. This is obviously a stressful situation for everyone involved, especially when they’re grieving.
There are two Alberta laws to address these issues.
- The Estate Administration Act says who can apply to court for grant of administration of the estate. Under this Act, a surviving spouse or qualifying adult interdependent partner has priority in either applying to be administrator or nominating someone else.
- The Wills and Succession Act sets out who can actually inherit the estate.
How does inheritance work if a common law partner dies without a will?
First, the administrator must pay off any debt using assets in the estate. Whatever assets are left are then typically sold and the proceeds are distributed between the beneficiaries.
Who is considered a beneficiary under Alberta laws?
- If there are no descendants, the surviving partner inherits the entire estate.
- If there are descendents and those descendants are also the descendent of the surviving partner, then the partner still gets 100% of the estate.
- If there are descendants but they’re not also the surviving partner’s descendants, then the partner gets 50% or $150,000 (whichever is greater) then the descendents split the rest.
A special Alberta nuance is that the surviving partner may also be a descendant. If that’s the case, they would inherit only what they’re entitled to as the partner, and not in any other capacity.
You should have the last word
Alberta has some of the most inclusive and comprehensive laws when it comes to common law and Adult Interdependent Relationships, but that means that it can be quite complicated. It’s up to you to fill in the blanks so the courts don’t do it for you.
You’ve worked too hard for what you have to leave the division of your assets to chance. By writing a valid, legal will, you can ensure that your loved ones are taken care of and things are dealt with the way you wanted them to be.
Start writing your will for free and have the final say.