Formalizing a relationship, whether you are living together, getting married, or going through a separation or divorce, involves significant legal considerations. Cohabitation, prenuptial or pre-marriage, and post-nuptial or post-marriage agreements are common ways to secure the rights and obligations of each party interfacing in a long-term relationship.
Following a relationship, the separation agreement sets out the parting terms. Governed by a well-established legal framework, such as the Family Law Act and Divorce Act, these agreements touch on aspects such as property, children, and financial responsibilities. Understanding these agreement options in Alberta, Canada, is crucial to ensure that both parties’ interests are amply protected.
1: Cohabitation Agreements
Cohabitation has become increasingly frequent in contemporary society. Couples that choose to live together before marriage or without getting married at all need to consider a cohabitation agreement. This written agreement stipulates the terms of the partners’ rights and responsibilities during their cohabitation, or if they part ways or one of them passes away.
These agreements, governed by the Family Law Act in Alberta, often involve clauses delineating asset division, child custody, and spousal support-if the cohabitation ends. The parties can decide how to divide their joint and separate property and debts, pay bills, and handle other financial aspects of their cohabitation. They can also elucidate the terms of spousal support which either party might need after separation.
When it comes to children, it is pivotal to note that child custody, support, and visitation rights are determined in the best interests of the child under Alberta’s Family Law Act. Thus, while aspects like care, control, or access to the children under cohabitation can be specified in the cohabitation agreement (also known as common law couple agreement and Adult Interdependent Partner Agreement), the current situation and child’s best interests at the time of separation will ultimately guide custody decisions.
2: Prenuptial Agreements
A prenuptial agreement, often referred to as a prenup, is a legal contract made by a couple before they get married or enter into a civil partnership. The primary purpose of a prenuptial agreement is to settle many of the potentially contentious issues that could arise if the marriage ends in divorce. They are useful tools if one partner has more assets, properties, or debts than the other, or pursuing a second marriage, or wants to protect family inheritance.
Under the Alberta Family Law Act, a prenuptial agreement sets out the obligations, rights, and responsibilities of both partners and how the property, debts, and other assets would be divided or managed if the marriage ends. It is crucial that the agreement is fair, and that both party’s interests are well-protected.
Just like in cohabitation agreements, prenuptial agreements cannot establish future issues regarding children in the event of a divorce. Under the Divorce Act, such issues include custody, access, and child support. They are subject to a court’s review and decision based on the child’s best interest at the time of the parents’ split.
A prenuptial agreement can also contain provisions about spousal support, detailing the amount and duration, and the circumstances under which support payments may change or cease. This provides protection to both the payor and the recipient in the aftermath of a marriage breakdown.
3: Post-Nuptial Agreements
A post-nuptial or post-marriage agreement is a legal agreement executed by a couple after getting married. The main objective of this contract is similar to that of a prenuptial contract; however, the primary difference is the timing of the agreement.
Under the Alberta Family Law Act, the content of a post-nuptial agreement may focus on the division and management of property, assets, and debts, and spousal support should the marriage end in divorce. Without such an agreement, the division of marital property in Alberta typically follows the rule of equal division, but a post-nuptial agreement can specify a different division as agreed upon by both parties.
Similar to the other types of agreements, a post-nuptial agreement cannot determine child-related issues like custody, visitation, or child support due to the provisions laid out under the Divorce Act. These issues will depend on the child’s best interests at the time of the parents’ separation.
The development of a post-nuptial agreement could harbor important benefits for a couple. For instance, if spouses acquire significant assets or debts after marriage, it can help address and protect these new financial circumstances. It could also serve as a conflict resolution tool, in case there have been disputes concerning shared finances or assets.
4: Separation Agreements
A separation agreement is a legal document drawn up when a couple decides to separate or divorce. This contract, covered under Alberta’s Matrimonial Property Act(now the Family Property Act), outlines the terms of the couple’s separation, including property division, financial obligations, and, if applicable, issues related to children.
The separation agreement is vital to ensure that both parties agree on their responsibilities and rights in the aftermath of their relationship. Property division can be contentious during divorces or separations; thus, a well-drafted agreement provides a clear path. It will typically cover the division of all property, whether it was acquired before or during the marriage, and whether it’s in one spouse’s name or both.
Besides property distribution, the separation agreement may dictate one spouse’s responsibility to provide financial support to the other spouse. The terms regarding spousal support – its amount, frequency, and duration – are typically included in the agreement.
Most importantly, it includes terms regarding children – their parentage, residence, support, and other factors related to their well-being. As per Divorce Act, all decisions related to children are made in accordance with the child’s best interests.
Conclusion
Agreement options for couples in Alberta span from cohabitation to separation, allowing couples to clarify and protect their rights, obligations, and interests in different phases of their relationship. Cohabitation agreements, prenuptial agreements, post-nuptial agreements, and separation agreements are all governed by various pieces of legislation, including Alberta’s Family Law Act, Divorce Act, and Family Property Act.
While property and financial aspects can be managed comprehensively, decisions about children must align with their best interests under the law. Each agreement must be drafted and executed properly to ensure legal standing. It is highly recommended to seek legal counsel in the preparation of any of these documents to ensure that both parties’ rights and interests are catered for and the agreement is clear, fair, and enforceable.
