Most content on this topic focuses on property division — who is entitled to what. That’s the family law question, and it’s usually the one people ask first.
This article covers what happens afterward: the conveyancing. What actually has to be registered at the Alberta Land Titles Office, what your lender requires, and the time-sensitive real estate issues that often arise while everything else is still being negotiated.
First: It’s the Family Property Act Now
Alberta’s Matrimonial Property Act was renamed the Family Property Act effective January 1, 2020. The change was more than cosmetic — it extended Alberta’s property division regime to adult interdependent partners, meaning many common-law couples now fall within the same legislative framework.
You’ll still find articles referring to the Matrimonial Property Act and stating that common-law couples have no property rights under the legislation. That was accurate before 2020. It is no longer current law.
Under the Family Property Act, the family home is generally treated as family property for the purposes of property division, even if it is registered in only one spouse’s or adult interdependent partner’s name. Exactly how it is divided depends on the legislation, any agreements between the parties, and the specific facts of the case.
Two Issues That Should Be Addressed Early
Many aspects of a separation can be negotiated over time. Two real estate issues deserve attention early because delaying them can create unnecessary complications.
Joint Tenancy
If you own your home as joint tenants, the right of survivorship applies. If one joint tenant dies before the joint tenancy is severed, their interest passes automatically to the surviving joint tenant. The property does not pass under the deceased’s will and does not form part of their estate.
Separated spouses sometimes update their wills and assume the issue has been addressed, without realizing that the right of survivorship can still determine who receives the property.
Joint tenancy can be severed by agreement between the owners. It may also be severed unilaterally in certain circumstances, but the legal requirements depend on the method used and the applicable Land Titles procedures. If severance is being considered during a separation, it should be completed with legal advice to ensure it is effective.
Severing a joint tenancy changes what happens if one owner dies. It does not determine who ultimately owns the property or how its value will be divided. Those remain family property issues.
Dower Rights
If the home is registered in the name of only one legally married spouse and the property qualifies as a homestead under Alberta’s Dower Act, dower rights may apply. Separation alone does not extinguish those rights.
Practically speaking, a non-titled spouse may still need to provide dower consent before the property can be sold or mortgaged, even if the parties have lived apart for an extended period. That consent must generally be signed before a lawyer who is independent of the titled spouse’s lawyer.
Dower issues are one of the more common reasons a separation-related transaction is delayed. Addressing them early can help avoid last-minute complications.
Three Common Options for the Family Home
Sell the Property and Divide the Proceeds
This is often the simplest approach. Both parties remain on title until closing, both execute the transfer documents, and the sale proceeds are divided in accordance with their agreement or court order.
If property division has not yet been finalized, lawyers can often hold funds in trust pending resolution.
One Partner Buys Out the Other
This is common where one person wishes to remain in the home.
A buyout typically requires a transfer of land removing one party from title together with new financing or lender approval. Whether the existing mortgage can remain in place depends on the lender’s requirements. In many cases, the remaining owner refinances the mortgage in their own name, but that is not the only possible outcome.
Continue Owning the Property Together
Some separated couples choose to retain joint ownership temporarily, particularly where children are involved or market conditions make an immediate sale undesirable.
If this approach is taken, it is important to have a written agreement dealing with matters such as:
- responsibility for mortgage payments
- payment of property taxes and maintenance costs
- how those contributions will be treated on a future sale
- what events will trigger a sale
Even where ownership continues temporarily, parties may wish to consider whether severing the joint tenancy is appropriate.
What a Buyout Actually Requires
People often underestimate what is involved in removing someone from title.
A buyout commonly requires:
- a written separation agreement or court order setting out the property division;
- preparation and registration of a Transfer of Land;
- execution of any required transfer and dower documentation, where applicable; and
- satisfying the lender’s requirements regarding the existing mortgage.
Being removed from title does not automatically remove someone from the mortgage. Those are separate legal relationships.
If both parties remain borrowers under the mortgage, a person who has been removed from title may still remain legally responsible to the lender until the lender formally releases them.
Lenders will generally require the remaining owner to qualify on their own before releasing the departing borrower from the mortgage obligations. Whether that is possible depends on the lender’s underwriting requirements and the remaining owner’s financial circumstances.
If refinancing is required before the end of the existing mortgage term, a prepayment penalty may apply. The amount is determined by the lender under the mortgage terms and should be understood before a property settlement is finalized.
One Piece of Good News
Unlike several other provinces, Alberta has no land transfer tax.
When ownership changes following a separation, only the applicable Alberta Land Titles registration fees and legal costs generally apply.
A Practical Sequence
Early in the Process
- Obtain a title search to confirm how ownership is registered.
- Consider whether joint tenancy should be severed.
- Determine whether dower rights apply.
- Speak with the lender about whether a buyout is financially possible.
Once the Agreement Is Finalized
- Provide the signed separation agreement or court order to your real estate lawyer.
- Coordinate any transfer of title with the lender’s financing requirements.
- If the property will be sold, arrange for an updated Real Property Report early if one is required under the purchase contract.
Working With Lawyers
Property division—determining who receives what—is a family law matter.
Preparing and registering transfers of land, arranging refinancing, addressing dower documentation, and completing the conveyancing are real estate matters.
Whether one lawyer can act for both parties depends on the circumstances and the applicable professional conduct rules. In many separation-related transfers, each party will require independent legal advice because their interests differ.
Involving a real estate lawyer before the agreement is finalized can also help identify practical issues with title registration or lender requirements before they become obstacles to completing the transaction.
How Berjak Law Can Help
Berjak Law assists clients throughout Edmonton with the real estate aspects of separation and divorce, including transfers of land, buyout refinancing, dower documentation, and the sale of family homes.
Berjak Law
10080 Jasper Avenue, Suite 301
Edmonton, Alberta
Contact us to discuss the real estate aspects of your separation before deadlines become closing-day problems.
This article addresses the real estate conveyancing aspects of separation and divorce in Alberta. Property division, support, parenting, and other family law issues require advice based on your individual circumstances and should be discussed with a family lawyer.
