Division of Property during Divorce

Understanding Divorce and Separation: Insights from Calgary Divorce Lawyers

Property acquired during the marriage is generally divided equally between the spouses.

Reach out to a family lawyer in Calgary for guidance if needed.

While the difference between the net family properties is generally divided equally between the spouses, there are very limited circumstances when the division of net family property is unequal. In Alberta, the Family Property Act governs the division of property upon separation. Under s.8 of the Family Property Act, a court may order an unequal division of family property based on factors such as the date of separation, whether one spouse contributed significantly more to the acquisition, preservation, or maintenance of the family property, and whether one spouse has dissipated property to the detriment of the other spouse. This allows for a more flexible approach to property division that considers each case’s unique circumstances.

In Mucha v Mucha, 2024 ABCA 46, the appellant challenged an interim matrimonial property distribution order requiring him to pay $700,000 to the respondent so that she could obtain a property of her own. The Court of Appeal disagreed with the appellant’s reasoning and refused to allow the appeal of the interim award. The Court recognized that at least $700,000 would be ordered on the ultimate property division and that the lower court has the discretion to order such interim awards. The Court held that “The division of matrimonial property is an exercise of discretion. Appellate intervention will only be warranted if the chambers judge “misdirected himself on the facts or if the decision is so clearly wrong as to amount to an injustice” [para 27].

In Melik v. Ducholke, 2003 ABQB 924, Justice J. B. Veit stated that, “An interim distribution of property can only be made in circumstances where it is clear that the distribution will not affect the final property rights of the parties” [Para 4]. Justice A. Woolley reaffirmed this in Wolf v Wolf, 2019 ABQB 200, stating that “the Court can take into account the availability of other matrimonial assets to compensate for granting the order” [para 46]. 

Based on the aforementioned factors set out in the Family Property Act, a Justice of the Court of King’s Bench of Alberta will determine what is equitable for both parties. In order to ensure you receive fair compensation, you are best off contacting an experienced family lawyer in Calgary. 

This article is for information purposes only and is not legal advice. Please contact Jivanya Reddy for more information about the unequal division of family property or if you require assistance with a separation or divorce.