These days, it is more common than not for couples to live together prior to getting married, or to live together in a serious permanent relationship but elect not to get married at all. Many of my friends live in such relationships, but few have considered what their rights may be, and in particular with respect to their property, if that relationship comes to an end. Too often, the assumption is made that living together as “common laws” is akin to being married and affords them the same entitlements and protection of marriage when in fact, there is no legislation currently in place which affords unmarried partners property rights similar to that of married individuals.
The Matrimonial Property Act, in its current form applies only to spouses, i.e., parties to a marriage. This arguably leaves a huge gap in the law for unmarried partners who, in the absence of legislation, must pursue a claim in unjust enrichment to be entitled to a share of property in their partner’s name which was accumulated during their relationship, while a married party would be afforded the presumption of equal division.
The current government in Alberta is taking steps to fill this gap through Bill 28 which, among other things, operates to rename the Matrimonial Property Act as the Family Property Act, and extend property rights to adult interdependent partners along with married spouses. Adult interdependent partners includes unmarried partners living in a relationship of interdependence for at least three years, or for less than three years and having a child. The Bill passed the house in late 2018, and these changes will come into effect on January 1, 2020.
Bill 28 arguably addresses a significant gap in the legislation and acknowledges that many people are living in serious interdependent relationships outside of marriage and should be afforded equal protection under the law. That being said, the question arises as to whether such amendments to property legislation undermine personal autonomy, and the choices of individuals in relationships not to marry for any number of reasons, including their desire to control and maintain their own finances and property. Unmarried partners who are living in a relationship that may constitute an adult interdependent relationship should carefully consider what effect this change in the law will have on their property, and may want to consider entering into an agreement to clarify how their property will be dealt with in the event that relationship ends.