In 2005, the Supreme Court of Canada legalized same-sex marriage in all provinces. While no one enters into marriage intending to divorce, same-sex couples are subject to the same problems and issues that cause opposite-sex couples to divorce. Since 2005, same-sex couples in Alberta have had the same rights and obligations when their relationship breaks down as those of the opposite sex.
However, before a divorce in Alberta can be finalized, couples have to come to an agreement on issues like child custody, property division, and financial support. This can either be done through negotiation or a judge’s orders.
Below is a brief guide on how to legally end a same-sex marriage in Alberta.
How To Legally End A Same-Sex Marriage in Alberta
What are the requirements to end a same-sex marriage in Alberta?
There are three legally acceptable grounds for divorce:
- You have lived separate or apart from your spouse for 1 year, or
- Your spouse has committed adultery, or
- Your spouse was physically or mentally cruel to you, making it impossible to continue the marriage.
What is the difference between spousal support in Alberta under the Divorce Act and Family Law Act?
Canada’s Divorce Act applies to all married and divorced people across the country. The Family Law Act applies to adult interdependent partnerships, i.e., those not married. This is strictly to do with court processes and does not affect spousal support entitlements and calculations.
What is the difference between a contested and uncontested divorce in Alberta?
An uncontested divorce is when both spouses agree on all the issues pertaining to the divorce, including but not limited to the division of marital property and debts, alimony, parenting time, and child support.
A contested divorce is when spouses cannot agree on their divorce issues and end up in court, whereby a judge makes these decisions for them. Even if spouses only disagree on one thing, the court will consider the divorce contested.
How is spousal support calculated in Alberta?
When evaluating spousal support, each spouse’s income and expenses will be considered. If both spouses have a similar income and neither have any special expense considerations like large medical costs, for example, spousal support will be unnecessary.
In most cases, the larger the income gap, the likelier the higher-earning spouse will have to pay spousal support. However, if the lower-earning spouse moves in with a new partner with a higher income, or has a change of job with a salary increase, the need for spousal support may be eliminated.
If you are getting a divorce in Alberta, the court will also look at how each spouse’s income was affected by the marriage. For instance, if one spouse puts their career on hold to care for children full-time, they will most likely receive spousal support as the marriage caused a direct loss of income.
How is parenting time determined when getting a divorce in Alberta?
Canada’s changes to the Divorce Act place greater emphasis on the best interests of the child when it comes to determining parenting time and decision-making responsibility. When making parenting arrangements, three things need to be decided upon:
- How decisions will be made on your child/children’s education and health,
- Where your child/children will live and how much time they will spend with each parent, and
- How differences of opinion will be settled on issues that may come up in the future
These decisions can be decided upon in three ways:
- Joint decision-making responsibility: Both parents consult each other and make decisions together.
- Sole decision-making responsibility: One parent makes all the decisions.
- Divided (parallel) decision-making responsibility: Decision-making is divided between the parents.
What happens if spouses can't agree on a parenting arrangement plan?
Spouses wanting to end a same-sex marriage in Alberta should try to come to an agreement with the assistance of their lawyers or through a neutral, third-party mediator. However, sometimes going to court is the only option available to ensure children get the financial support they need.
If spouses decide to go to court, they must realize the judge will make their decision based on the best interests of the child/children, which is based on the evidence presented at the hearing or trial. This can be a lengthy and costly process. Furthermore, both spouses have to live with the decision made by the judge, giving them little control over the outcome.
How are assets divided in a same-sex marriage in Alberta?
Matrimonial property, which also includes debts, is equally divided between divorcing spouses in Alberta. This entails; the matrimonial home, most land or real estate attained during a marriage, bank accounts, vehicles, stocks, deposits, bonds, insurance, recreational property, and pensions.
Any property owned before the marriage or received as a gift or inheritance from a third party is exempt from division. However, any increase in the value of the exempt property during the marriage will be divided.
How are assets divided in a same-sex marriage in Alberta if there’s no prenup?
The Family Property Act (FPA) is used to classify and distribute property when getting a divorce in Alberta. The basic presumption is that all matrimonial property will be divided equally between the spouses. This includes debts incurred during the marriage on behalf of the family.
Summary
Same-sex couples are entitled to the same marital rights and privileges as opposite-sex couples. While the process of ending a same-sex marriage in Alberta may be stressful, it can ultimately be the best decision for both spouses if their relationship can no longer continue. Because there’s a lot to consider when getting a divorce in Alberta, we advise hiring a lawyer to handle the paperwork so you can focus on making these life-changing decisions and protect the future of you and your family.
Calgary Family Lawyer Charles Fair
Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for over 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
Give me a call and I can put my years of experience in divorce and family law to work for you.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.