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Marital Agreements

What are Marital Agreements and Why Having a Lawyer Helps

Marital agreements include Prenuptial agreements, Postnuptial agreements and what most Albertans might refer to as separation agreements. Marriage contracts can minimize or resolve legal disputes, eliminate uncertainty and resolve emergencies.
Each agreement is unique and, in the best case, can provide a comprehensive solution to each problem. Our Family Lawyers at Laws & Beyond only draft an agreement after we have complete command of the parties’ assets, liabilities and familial circumstances. Some agreements may be basic, requiring only a division of bank accounts and crafting a holiday schedule for your children. Others might be more intricate involving distribution of complicated assets including dividing businesses, professional practices, real property and stock portfolios.
There is nothing romantic about a prenuptial or postnuptial agreement; however, planning for your financial future requires tough conversations with your future or current spouse in order to protect your personal or family wealth, business or practice. If drafted and executed properly, prenuptial and postnuptial agreements can help enhance your financial harmony and provide a level of predictability down the road.
[F]or parties negotiating a separation agreement, one party may have power and dominance financially, or may possess power through influence over the children. . . .  The reality . . . is that often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other.  The complex marital relationship is full of potential power imbalance.[para. 128] Leopold v. Leopold (2000), 2000 CanLII 22708 (ON SC), 51 O.R. (3d) 275 (S.C.J.)
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[F]or parties negotiating a separation agreement, one party may have power and dominance financially, or may possess power through influence over the children. . . .  The reality . . . is that often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other.  The complex marital relationship is full of potential power imbalance.[para. 128] Leopold v. Leopold (2000), 2000 CanLII 22708 (ON SC), 51 O.R. (3d) 275 (S.C.J.)
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PRENUPTIAL AGREEMENTS IN CALGARY

A prenuptial agreement is a contract between future spouses and is entered into before marriage. In a prenuptial agreement both spouses disclose to each other all the assets owned before the marriage and as well as the debts owed before getting married. The prenuptial agreement may also provide the rights and responsibilities of each spouse during the marriage, including how they will divide their property in the event of divorce or the death of one or both of you.
The Family Property Act of Alberta (previously known as Matrimonial Property Act of Alberta) already determines how property should be divided in the event a marriage ends in divorce or death, however, the Calgary courts will recognize a valid prenuptial agreement that may be different from how Alberta law would divide the property. The prenuptial agreement takes the control over your property and assets away from the Alberta courts and places it in the hands of you and your spouse.
A prenuptial agreement will be held valid and enforceable as long as it protects both spouses and it was entered into with a full and fair disclosure of all assets and liabilities of both spouses. The prenuptial agreement must also be executed and acknowledged by both spouses and must include Independent Legal Advice Certificate of both spouses’ respective lawyers.
A prenuptial agreement can address the following issues:
  • 1. Separate property – the assets you bring to a marriage are called separate property. As long as you keep your separate property separate from the property you and your spouse obtain together during the relationship and marriage, the separate property will continue to have a status of an “exempt property”. A prenuptial agreement should specifically identify which property is separate property for each of you. However, if you do not keep your separate property separate, then despite the prenuptial agreement, such property may later be considered marital property and divided equally between you in a divorce.
  • 2. Family property – just as you can identify each spouse’s separate property in a prenuptial agreement, you can also identify property you want to be considered as marital or family property, even if it is actually separate property.
  • 3. Spousal Support – a prenuptial agreement can establish spousal support for you or your spouse during the marriage. Also, a prenuptial agreement can establish what kind of support you or your spouse will pay to the other spouse after a divorce. You can also specify that there will be no spousal support payable, if you divorce later.
  • 4. Pre-marriage debts – if you or your spouse brings substantial debt to the marriage, the prenuptial agreement can state that debt will solely be that spouse’s responsibility during and after marriage.
  • 5. Child support and Child Parenting – A prenuptial agreement cannot definitively address child support issues or custody issues for future children. The courts in Alberta will always have the jurisdiction to determine whether child support and custody arrangements are in the best interests of a child, so such issues will ultimately be reviewed by the Alberta courts.
  • 6. Children of a Prior Marriage – If you bring minor children to the marriage and your spouse does not wish to adopt them, then the prenuptial agreement can help make sure the children from your previous relationship or marriage will be provided for, if you and your spouse divorce, or in case your death.
For more details call our Calgary Family Lawyers today.

SEPARATION AGREEMENTS IN CALGARY

A Separation Agreement is a contract that parties enter into at end of their relationship. 
  • The Separation Agreement is also referred to by the following names:
    1. Divorce Settlement Agreement
    2. Separation and Property Settlement Agreement
    3. Custody, Support, and Property Agreement
    4. Mediated Separation Agreement
    5. Collaborative Settlement Agreement
    6. Matrimonial Property Agreement, and
    7. Marital Settlement Agreement
  • The purpose of the separation agreement is to record any agreements reached between divorcing (or separating) spouses as to parenting (as known as child custody arrangement), child support, spousal support (also referred to as alimony or maintenance), and division of property and debts.
  • Separation agreement can be an effective and inexpensive way of settling the above matters. However, the legal requirements of the separation agreement must be met. Such as, the Separation Agreement must be in writing and signed by both parties and is witnessed. Most importantly if the divorce agreement deals with division of property then each spouse must obtain a Certificate of Independent Legal Advice if you would like the agreement to be enforceable in Alberta.

COHABITATION AGREEMENTS IN CALGARY

A cohabitation agreement is a legal document that provides protection and clarity for couples who choose to live together without being married. It outlines the rights and responsibilities of each partner during the relationship and in the event of a breakup.

Who Can Enter a Cohabitation Agreement?

A cohabitation agreement can be signed by:

  1. 1. Couples who live together in a romantic relationship;
  2. 2. Couples planning to move in together; and
  3. 3. Any two individuals, such as friends or relatives, who decide to live together and share expenses (though this article focuses on romantic partners).

Why is a Cohabitation Agreement Important?

In Alberta, couples who live together for three years or have a child together are considered common-law partners. However, common-law partners do not have the same legal rights as married couples, particularly regarding property division under the Matrimonial Property Act. Without a cohabitation agreement, a partner may not have any legal claim to shared assets after a breakup.

  • A cohabitation agreement helps to:

    1. 1. Clearly define how assets and debts will be divided;
    2. 2. Establish financial support arrangements in case of separation; and
    3. 3. Provide security in the event of a partner’s death, ensuring inheritance rights.

  • Key Components of a Cohabitation Agreement

    A cohabitation agreement typically includes provisions for:
    1. 1. Asset and Debt Division – Identifies each partner’s assets and debts and outlines how they will be handled upon separation.
    2. 2. Financial Support – Determines whether one partner will provide support to the other and for how long.
    3. 3. Child Custody and Support – If applicable, establishes parenting arrangements and financial support for children.
    4. 4. Inheritance Rights – Specifies property distribution upon a partner’s death if no will is in place.

  • How to Create a Cohabitation Agreement

    To create a valid and enforceable cohabitation agreement, follow these steps:

    1. 1. Identify and Value Assets and Debts – Each partner must disclose their financial situation.
    2. 2. Decide on Property Division – Agree on how assets and debts will be split in the event of separation.
    3. 3. Determine Financial Support – Outline whether support payments will be made after separation.
    4. 4. Consider Child Custody and Support – Include terms for children, if applicable.
    5. 5. Seek Legal Advice – Both partners should have independent legal counsel to ensure fairness.
    6. 6. Sign the Agreement – The document must be in writing, signed by both parties, and witnessed.

  • Enforcing a Cohabitation Agreement

    A cohabitation agreement is legally binding in Alberta, provided it meets the following requirements:

    1. 1. It is in writing and signed by both partners;
    2. 2. Each party had independent legal advice; and
    3. 3. There was full disclosure of significant assets and debts.

    A court may set aside the agreement if it is found to be unconscionable, if there was fraud or duress, or if significant financial information was not disclosed.

Frequently Asked Questions

 Please reach us at info@lawsnbeyond.com if you cannot find an answer to your question.

How long does it take to make a Separation agreement?
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While martial agreements are presumed to be enforceable, you or your spouse may challenge the validity of a marital agreement for certain reasons, including:
  • 1. Separate Lawyers – you and your spouse should have separate family lawyers if you are going to enter into a marital agreement. If you do not have separate lawyers, the Alberta court will look at your marital agreement more closely for unfairness and may not enforce the matrimonial agreement.
  • 2. Fraud – if you or your spouse fails to disclose your assets honestly, or if you hide your assets, that Alberta court may not enforce the prenuptial agreement.
  • 3. Coercion/Duress – if either you or your spouse uses pressure to get the family law agreement signed or does not give the other enough time to consider the family law agreement, the Alberta court may not enforce the family law agreement.
  • 4. Unfair and Inequitable – if the family law agreement favors you or your spouse unfairly, for example by leaving the other spouse with nothing, the Alberta court may not enforce the family law agreement.

For further details call our experience Calgary Family Lawyers today.