Common-law couples arguing about how to divide their property after they break up will soon get relief from the costly, time-consuming struggle thanks to three years of groundwork by the Alberta Law Reform Institute (ALRI).
Bill 28, the Family Statutes Amendment Act, effectively establishes that common-law couples are entitled to the same 50-50 division of property upon the dissolution of their relationship as married couples. It passed third reading in the legislature earlier this week and is expected to come into force Jan. 1, 2020.
Alberta judges referred to judge-made common law from previous cases to decide the division of property for common-law couples because there was no law to guide them, said Laura Buckingham, lead counsel for the ALRI project.
"The rules were complex, difficult to explain and applied differently to individual cases," she said. "That made it very difficult for people to settle disputes."
She said an average Alberta family has assets of about $290,000 and the cost for a family-law trial can be tens of thousands of dollars for each party. Since going to court doesn't guarantee a favourable outcome, many people simply did not pursue their claim, creating an access-to-justice issue, said Buckingham.
The gap in the law existed for years, with family lawyers and the Canadian Bar Association's Alberta branch advocating for change. In 2015, ALRI, which has a mandate to conduct independent research and provide government with recommendations to improve ineffective or out-of-date laws, stepped in.
Last June, the institute-which is housed in the U of A's Faculty of Law, and funded by the Alberta Law Foundation, Alberta's Ministry of Justice and Solicitor General, and the University of Alberta-delivered a report to the provincial government with 20 recommendations on how to update the law. Bill 28 included 19 of those 20 recommendations.
"It was a very speedy, if not the quickest turnaround from report to implementation that we've worked on," said Sandra Petersson, ALRI's executive director. "That says it's an important need for couples and families. We have recent data that says more than 300,000 Albertans are in common-law relationships."
The behind-the-scenes work by ALRI took far more time, as it first researched the history of the issue and then sought ways to hear what a wide range of Albertans think.
It commissioned research from the now closed U of A Population Research Laboratory to gauge current attitudes and expectations, and also conducted early consultations with lawyers working in family law. Those findings were published in a report for discussion, along with suggested solutions.
Consultations widened to include lawyers working in other areas, legal community organizations and the public, through online surveys, phone calls, in-person events and written comments. Three main points emerged.
Albertans strongly believe the best option is for common-law couples to make their own agreements about property division. If that fails, they said that legislation should be created and that it should contain the same rules as those for married couples. The feedback also helped refine details, such as how soon people can make a claim and when it should be too late to do so.
The passage of the bill changed the existing Matrimonial Property Act to the Family Statutes Amendment Act, providing one set of rules in one act to cover both married and common-law couples. The biggest advantage is that everyone is now clear on how a court would divide property, said Buckingham.
"That allows people to decide if those rules suit them or if it's better to make their own agreement," she said.