Division of Assets & Debts / Matrimonial Property
Whether parties are married or cohabiting, a separation or divorce involves couples detaching their intertwined financial lives and separating their assets and debts. In order to resolve those matters in a legally enforceable manner, which protects both parties, they must sign a binding contract, obtain an arbitration award or obtain court judgment. If parties proceed to arbitration or trial the division of their assets and liabilities will occur pursuant to the Matrimonial Property Act and/or the common law (judge made law). In the event parties agree to divide their property in mediation, they have the ability to think outside the box and reach any agreement they find mutually acceptable.
Regardless of the process used to divide assets and liabilities, parties need to be well informed of the law. It is essential that decisions made when agreeing upon a settlement are informed decisions. It is also imperative that parties can present their case appropriately in arbitration and have confidence that the arbitrator has the legal knowledge, training and experience to make a correct decision with a proper application of the law.
The division of matrimonial property and the property of common law spouses can be extremely complicated. Properly identifying and addressing tax issues, valuation issues, and the myriad of issues relating to exemptions can be crucial and can have massive implications in the final outcome of a case.
At Jones Divorce Law LLP you can have confidence that you are in good hands. Your matter will be resolved thoroughly and professionally, will be legally binding and enforceable and will address the nuances of how the law applies to your particular circumstances.
Division of Property for Common Law Couples
There is a great deal of discretion when it comes to how common law couples’ property will be divided. It could be anything from an equal division to each party keeping what they acquired during the relationship.
There is no legislation in Alberta governing how the property of common law spouses should be divided. However, there is judge made common law that provides principles relating to the division of common law spouses property. The basis for a distribution of property during a common law relationship involves equitable principles of constructive trust, resulting trust, unjust enrichment, and/or quantum meruit. These are equitable remedies that result in one party being wrongfully deprived of his/her rights. It is important to know that a claim for there remedies must be commenced within two years of the date of separation or the claim will be statute barred as a result of the Limitations Act, R.S.A. 2000, C.L-12.
Since the division of property acquired during a common-law relationship is so discretionary, it is extremely difficult to advise clients on exactly what will occur in the event a matter proceeds to trial or arbitration. Generally speaking, the longer the relationship and the more intertwined the personal and financial affairs of the parties were during the relationship, the greater the likelihood that assets owned individually but acquired during the relationship will be divided equally or close to equally between the parties. Conversely, the shorter the relationship and the more independent the personal and financial affairs of the parties were during the relationship, the greater the likelihood that assets owned individually will not be shared to a significant degree, and possibly not at all.
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