Yours, mine and ours

Viewers of the 1968 comedy “Yours, Mine and Ours” were treated to the adventures and antics of a very large blended family created when a widow (Lucille Ball) with eight kids married a widower (Henry Fonda) with 10.

In 2020, the title could equally well describe the not so comedic challenges of sorting out who gets what when a marriage or common-law relationship comes to an end.

Canada has a patchwork of legislation dealing with property division. People who have been married and are now seeking a divorce from their spouse can turn to the federal Divorce Act. Those who have lived in a common-law relationship or who have been married but are not pursuing a divorce must rely on provincial/territorial legislation which, while similar from jurisdiction to jurisdiction, is not identical. In Ontario, this statute is the Family Law Act.

What the law says

(Please note that the information below is a summary of the key points of property law and does not explore its many nuances. Anyone with a property division question should speak with a lawyer.)

Briefly put, legislation dealing with property division sets out two distinct regimes.

People who are married must share equally the value of all property they accumulated between the date of marriage and the date of separation, regardless of who paid for it and in whose name it is registered, with some exceptions. Most notably, the value of the matrimonial home (anywhere the family lived as a family prior to the separation of the spouses) is to be shared equally, regardless of when it was purchased.

People who are not married have no such statutory rights or obligations. When a common-law relationship comes to an end, each person takes away anything they owned going in and anything they bought during the relationship or that is registered in their name alone. If the deed to the home they lived in is in the name of one partner only, it belongs to that partner; if it is in the name of both of them as joint tenants, they each own 50% of its value.

Making our own agreements

People are free to enter into contracts about how they wish to organize their intimate relationships and how they wish to manage their affairs if that relationship comes to an end, even if those contracts set out arrangement that are different from those in the relevant legislation.

For example, a couple could write a marriage contract (sometimes called a pre-nup) either at the time they married or at any time during their marriage in which they agreed not to share equally the value of some or all of their property. Two people entering a common-law relationship could write a cohabitation agreement to establish that, while they are not getting married, they do wish to share equally the value of all or some of their property.

As long as these contracts are in writing, witnessed, did not involve coercion or duress and both people provided full financial disclosure (don’t forget to mention that $10 million Swiss bank account!), they are legally binding, even if one person is disadvantaged compared to what the law offers. In Canada, the courts have long since decided that people are free to give up their rights and even to make decisions that are not in their apparent best interests.

Time for some changes

As the construction of families in Canada changes, so must the law. The hard-line distinction between married and common-law relationships is out of date now that so many people live in long-term, committed relationships outside the structure of marriage.

New legislation in Alberta seems to be taking some large steps to remove this distinction. The Family Property Act, replacing the Matrimonial Property Act, came into effect on January 1 of this year. It expands the statutory right to property division from married people to what the legislation calls “adult interdependent partners,” who are defined as two people who are married or who live together in a relationship of interdependence:

  • for at least 3 years
  • of some permanence (and less than 3 years) and have a child, OR
  • who have entered into an adult interdependent partner agreement.

A relationship of interdependence is defined as one in which two people are not married to one another but:

  • Share one another’s lives
  • Are emotionally committed to one another AND
  • Function as an economic and domestic unit.

This approach minimizes the differences in terms of property division between married people and people who do not marry but are committed to one another, thus creating a simpler and more streamlined approach for non-married people in committed relationships.

In effect, it moves the law from an opt-in arrangement for people in common-law relationships (“I want us to share our property as though we were married so let’s write a cohabitation agreement”) to an opt-out (“I want to live with you but I don’t want to share our property so let’s write an agreement stating that”).

I have learned over my years as a family law lawyer that there is almost nothing harder than trying to convince a woman entering a new long-term relationship that she and her partner-to-be should write an agreement about how to manage their affairs if the relationship goes sour. After all, no one wants to anticipate that their new relationship might end or that the love of their life might ever treat them less than well.

The new Alberta legislation offers more protection to people by making the assumption that people in committed relationships – married or otherwise – intend and have an obligation to do right by one another, even if those feelings change over the life of the relationship.

But it does more than this: as the wording above indicates, people can be adult interdependent partners without being romantic partners. It appears that two adult sisters, say, or two close friends who live together for at least three years or have entered into an AIP agreement, who share one another’s lives, are emotionally committed to one another and function as an economic and domestic unit would be covered by this legislation.

“What’s mine is mine, and what’s yours is mine, too”

Those who do not support this move claim it is a state invasion of private relationships and that people should be free to enter into relationships free from any obligations to one another. I disagree, especially because anyone can opt out of the obligations of Alberta’s Family Property Act by writing an agreement to that end.

In my work, I see far too many women with abusive partners who maintain absolute power and control over the family’s money, financial decisions and property, taking the attitude that everything is theirs other than whatever pittance they dole out to their partner, often with strings attached. These women should be better served under Alberta’s new legislation.

It is early days to know just how well this new legislation will work, but many of us in other parts of the country will be watching it closely and preparing to advocate for similar changes in our province or territory.

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