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How will the new Family Property Act impact LGBT couples?

The Alberta legislature passed Bill 28 which includes new matrimonial property legislation called the Family Property Act. It comes into force January 2020 and LGBT couples should be particularly cautious about how it will affect them. The most prominent change to family law under the new Alberta Family Property Act is that it will give common law couples the same rights and obligations for their property as married couples already have. This means a 50/50 division of property acquired during the relationship (with certain exceptions).

The new Family Property Act does not directly target LGBT couples but it will impact them disproportionately. This is because of the prevalence of common law couples in the LGBT community. The 2011 census indicates that there were only 21,015 married same-sex couples in Canada but there were 43,560 same-sex couples living common law. (Statistics Canada, Same-sex couples and sexual orientation... by the numbers, 2015, https://www.statcan.gc.ca/eng/dai/smr08/2015/smr08_203_2015)

For many this will be a welcome change. It is far easier to understand than the previous law and will lead to faster settlements of property disputes. However, for those who thought they were avoiding the complexities of matrimonial property and divorce by staying unmarried, this should be a wakeup call. A cohabitation agreement can be drafted that replaces the effects of the Family Property Act with a custom-tailored financial arrangement that will fit you and your spouse better than legislation ever could. For couples who are interested, part 2 of this post will outline the steps you take to get a cohabitation agreement in Alberta.

If you have additional questions about how to get your cohabitation agreement started or you are ready to have one made please contact Tyler Fric.

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