Primary Home: Alberta Common Law
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to a cohabitation agreement in Alberta, you should seek professional assistance.
Dealing with the Primary Home in a Common Law Relationship
When two non-married adults live together in a home, they may want to have some type of agreement concerning things like: who owns that home; who will pay for expenses related to the home (e.g. mortgage, property taxes, insurance, etc.); what minimum notice must be provided to the spouse who doesn’t own the home to leave; and how will the net proceeds from the sale of the home be divided.
One party could already own a home and the other party could simply move in. In this situation, the party that owns the home could require that the other party acknowledge that they do not own the home, will not pay any expenses related to the home, and will receive nothing if and when the home is sold at any point. Indeed, the party that owns the home may require that the other party vacate the home upon receiving a set period of notice (e.g. 30 days).
Now, importantly, if the home is considered a “Primary Home” of adult interdependent partners under the Family Law Act (as discussed above on page 7), then rights of possession MAY arise alongside a Support Order. In this respect, a Court may order an adult interdependent partner to be given exclusive possession of the “Primary Home” (and the other partner may be evicted from the Primary Home or restrained from entering or attending at or near the Primary Home). To avoid these types of rights from being claimed, the parties should clearly waive Support obligations in the Cohabitation Agreement (as it appears that rights of possession under the Family Law Act may be contingent on Support obligations). The parties should also obtain releases from each other such that they will not claim a right or interest – based on the Family Law Act – to possess the Primary Home or restrict the other party from entering or attending the Primary Home.
If both parties are planning on buying a new home, then they generally both own and have rights to possess the house. In this situation, the parties may want to share or divide the expenses related to maintaining the home (e.g. mortgage, taxes, utilities, etc.) and may come up with a formula for dividing the net proceeds from the sale of the home. For example, first the down payment will be repaid to that party who paid it (or both parties if they paid it). Second, a lump sum may be paid to a particular party for a specific reason. And finally, the left over amount will be divided according to a certain percentage (e.g. 50% for Party #1 and 50% for Party #2).
So what if a party owns another home that will not be used for cohabiting? Well, in this situation, that property will be treated no differently than other property. If you want to prevent the other party from having any interest in that home (e.g. based on equitable claims of unjust enrichment), then you should enter into a cohabitation agreement that identifies that property (for example, in a schedule as part of the financial disclosure being made) and acknowledges that it will remain the property of the owner and not the other party (which is done in the agreement).
By addressing support, ownership and possession of the home in a Cohabitation Agreement, the parties can understand and determine their own rights and obligations without having to resort to those rights and obligations in the Adult Interdependent Relationship Act or the Family Law Act.
FYI, if you’re looking for a Cohabitation Agreement for Alberta that avoids creating financial obligations, then you’ve come to the right place:
This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) with each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement terminates when the parties get married to each other. Here’s a sneak peak of the video guide that comes with this legal form:
If you want the cohabitation agreement to continue past marriage (i.e. continue to be valid and enforceable past marriage), then you can check out the cohabitation agreement below:
This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) and their marriage to each other. It essentially becomes a Prenuptial Agreement or Marriage Contract when the parties marry each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement continues to be valid and enforceable past marriage.
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