Many people now own property outside Alberta. Whether a desert home for golfing in winter, a lake property for boating in summer, or a mountain property for those holiday ski vacations, the property is a wonderful family asset everyone enjoys. But what happens when the marriage breaks down and the family can’t enjoy the property together?
In Alberta, matrimonial property is divided between separating spouses as outlined in the provincial legislation known as the Matrimonial Property Act.
Section 9 of that act allows the Court to distribute the property located in Alberta in such a way as to give effect to the distribution of the property as a whole no matter where it is located.
This works fine if at least half the property is located in Alberta — the court can award the “Alberta half” to one spouse and allow the foreign half to remain with the other spouse. But what if the majority of the property is located outside Alberta?
As a general rule, courts in one country have no jurisdiction to deal with the immovable property in another country. From a legal perspective, each province in Canada is considered “another country”. However, courts can impose persona l obligations between parties when certain factors exist, which foreign jurisdictions will generally honour.
In order to impose such a personal obligation, the court must find four factors present:
1. The Court must have jurisdiction over the person it seeks to impose the obligation on. By bringing or defending a matrimonial property action in Alberta, the Court has the inherent jurisdiction to deal with your matrimonial property wherever it is located.
2. The parties must have a personal obligation between them. In previous instances of foreign matrimonial property, the Courts have found that husbands and wives have not only a moral obligation to each other imposed by marriage itself, but also a legal obligation relating to the sharing of property imposed by the Matrimonial Property Act. The obligation is therefore present in the case of a husband and wife dealing with their property on separation.
3. An Alberta Court must be able to supervise the execution of the judgment.
For instance, if an Alberta Court were to order the transfer of a home in Arizona from the husband to the Wife, the Alberta Court would order such if they felt that the Husband had a sufficient connection to Alberta that the court in Alberta could exert some control on the Husband’s movements or funds if he were to fail to comply with the direction.
4. If an Alberta Court makes an order, can the foreign jurisdiction do what is demanded? If for instance, property in east Africa cannot be owned by women, the Alberta Court will not order a Husband to transfer the property that he owns in a country there to his Wife.
In such a case, the Alberta Court would not make the order since it could be given no effect in the foreign jurisdiction.
While property owned outside Alberta causes some administrative problems in the division of matrimonial property, it can be dealt with inside the framework of our court system.
If all four of the factors are present, individuals should consider having the Alberta Courts deal with foreign property on marital breakdown rather than pursuing a number of actions in a variety of foreign jurisdictions.
Legally Speaking is intended for information purposes only. Readers with a specific legal problem should consult a lawyer. This week’s column was written by Monica R. Brown of the Red Deer law firm Duhamel Manning Feehan Warrender Glass. Brown can be reached at 343-0812 or at www.reddeeraltalaw.com