Who Gets the House After Separation in Alberta?
For many separating couples, the family home is their most valuable asset and a major source of stress.
In Alberta, the Family Property Act governs property division for both married spouses and adult interdependent partners (formerly referred to as "common law" partners).
Adult interdependent partners (aka AIPs) are generally treated the same as married spouses when it comes to family property, but only once they legally qualify as AIPs. This usually means living together in a relationship of interdependence for at least three years, or for a shorter time if they have a child together.
The Family Property Act generally presumes that property acquired during the relationship is divided equally, even if it's registered in only one spouse's name.
But what happens when AIPs separate and they own a home together? Or when only one partner is on title, but both lived in the home during the relationship?
That’s where things can get complicated. In this article, we’ll walk through how the family home is treated after separation, including what happens when both partners are on title, when only one is, whether selling the home is required, and the steps you can take to protect your interests along the way.
What Property Gets Divided — and What Doesn’t?
Not all property is divided equally. Certain property is considered "exempt property" under the Family Property Act, meaning they're excluded from division.
Examples include:
- Property owned by a spouse before getting married or before entering into a relationship of interdependence.
- Gifts received from third parties.
- Inheritances.
- Awards or settlements for damages in tort.
- Proceeds of an insurance policy.
However, claiming an exemption usually requires some proof. You need to be able to show where the property came from and how it was kept separate over time.
An exemption can also be lost if the property is mixed with other assets, placed in joint names, or used as shared property during the relationship.
If a family home was owned before the relationship began, the owner can usually exclude its value as of that date from division. However, any increase in the home’s value during the relationship is typically shared.
What’s important to understand is that it’s the increase in market value that gets divided, not the amount of equity in the home. The Alberta Court of Appeal confirmed this approach.
To show how this works in practice, let’s look at a few common scenarios.
How Is the Family Home Divided When Both Names Are on Title?
Suppose Partner A and Partner B purchase their first home together, with both of their names on title. They each contribute $40,000 toward the down payment. Years later, the property is worth $100,000.
In most cases, the equity will be shared equally. Sometimes each partner may first recover their initial $40,000 contribution, with the remaining increase divided equally.
This presumption of equal division applies even if only one partner covered the mortgage and other household costs because the Family Property Act doesn't focus on "who paid for what" for property acquired during the relationship.
Only One Person Is on Title — Do You Still Have a Claim?
Now imagine Partner A purchased a home before the relationship, and Partner B later moved in. Partner B's name was never added to the title, but the couple lived there together for 10 years. When the relationship began, the home was worth $40,000, and by the time it ended, the value had increased to $100,000.
In this case, Partner A may be able to keep the original $40,000 they invested as exempt property. However, the $60,000 increase in value during the relationship could be divided with Partner B, even though Partner B was never listed as an owner.
The same principle applies to other property owned at the start of the relationship, such as investment accounts, recreational properties, or valuable personal items.
Unlike property acquired during the relationship, increases in exempt property aren't always split equally. The court instead decides what's "just and equitable", considering, among other factors, the length of the relationship and contributions by the partners, such as paying household bills, renovating the home, or raising children.
For example, if Partner A invested significant sweat equity in renovating the home, they may be entitled to receive a greater share of the increase.
Can Your Partner Sell the Family Home Without Your Permission?
Another issue that comes up when only one partner is on title has nothing to do with division at all — it’s what happens if that partner decides to sell the home. If Partner B isn’t on title, they aren’t legally recognized as an owner, which means Partner A can sell the family home without Partner B’s consent.
If both names are on title, however, both must agree before a sale can take place.
Here, there's an important distinction between married spouses and AIPs.
Married spouses are protected by Alberta’s historic Dower Act, which prevents an owner from selling or mortgaging the family home without the other spouse’s consent, even if that spouse’s name isn’t on title. The Dower Act also gives the non owner spouse certain rights to remain in the home.
AIPs, however, aren’t covered by the Dower Act. If one partner is the sole owner and the property is only in their name, they can sell or mortgage the home without the other partner’s consent. In those situations, the non titled partner must rely on the Family Property Act to protect their interest, often by filing a claim or registering a caveat against the property.
Does the Family Home Have to Be Sold?
Not necessarily. The family home doesn’t automatically have to be sold when a relationship ends. Depending on the circumstances, the court has several options for dealing with the home, and a sale is just one of them.
In some cases, the court may order one partner to pay money to the other, transfer an interest in the property, or recognize that one partner has an interest in the home — even if their name isn’t on title. In other situations, the court may order that the home be sold and the proceeds divided.
Common options can include:
- One partner buying out the other’s interest in the home.
- One partner keeping the home, with an adjustment made through other assets.
- A delayed or deferred sale, particularly where minor children are involved.
- An immediate sale of the home, with the proceeds divided between the partners.
How to Protect Your Interest in the Family Home After Separation
Because AIPs don’t have the same protections under the Dower Act, planning ahead is especially important. This can include:
- Keeping comprehensive records throughout your relationship. Good documentation often determines whether exemptions are preserved.
- Adding both names to title, if you're purchasing a home together.
- Making a cohabitation agreement or a prenuptial agreement, if you plan to marry.
- Seeking legal advice early.
Other steps may include starting a court application to divide property or to prevent certain steps from taking place, registering at the land titles office, or pursuing out-of-court solutions such as negotiation, mediation, or other forms of dispute resolution.
It's important to seek advice from a lawyer before taking any of these steps to ensure your rights are safeguarded.
The Family Property Act sets strict timelines for starting a family property claim. AIPs have, at most, two years from becoming former partners to bring a property claim, and, in some cases, as little as one year if the family home is sold or transferred.
The division of the family home in Alberta can be complicated, particularly for non-married couples who don't benefit from all of the same protections as married spouses.
At Crossroads Law, our family lawyers regularly assist clients with complex family property claims, including issues involving exempt property and disputes over the family home. If you’re separating and one or both of you own property, we encourage you to reach out to book your free 20minute consultation today.
The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.
