It is always better if the two parties can agree on how to settle the issues, whether through the use of a mediator or settlement meeting with counsel. Ideally, you should have lawyers draft your separation agreement. If both spouses work with one lawyer to draft the separation agreement, once it is finalized, one of you should take the separation agreement to a separate lawyer for independent legal advice. If there are issues that you are having a hard time coming to an agreement about, you should consider using a mediator. A mediator can help you come to an agreement on all of the issues and even draft the separation agreement for you. He or she would then direct each of you to get independent legal advice prior to executing the agreement.
To be valid, the agreement must:
- Be in writing;
- Have been entered into freely and NOT have been forced by the spouse or some other person;
- Show that each spouse had INDEPENDENT LEGAL ADVICE about the effects of signing the agreement. That means that each spouse must execute the agreement with a different lawyer.
Creating a separation agreement will allow the parties to contract out of the Matrimonial Property Act (MPA). That means that the MPA will not apply to their property. The spouse must understand that they are giving up their right to future claims– this right is being replaced with the agreement. It is important to note that the Court will not enforce an agreement that it considers to be “unconscionable”. An agreement would be unconscionable if one spouse was unable to properly protect his/her own interests at the time of the agreement. Examples of an unconscionable agreement may include taking advantage of a spouse that cannot afford legal advice or lying about property to induce an agreement.
We encourage you to contact us prior to drafting or signing a Separation Agreement. There is legislation and case law which is specific to the disclosure requirements a party must provide and receive for an Agreement to be valid. There are also specific clauses and requirements for the terms in an Agreement to ensure that you are protected from future claims with respect to property and spousal support.
Prenuptial and Cohabitation Agreements
A prenuptial or cohabitation agreement is a contract entered into by two people prior to marriage or civil union. A marriage contract can be made either before or during a marriage. If it is made prior to the marriage it is termed a prenuptial agreement or “pre-nup”. In addition, prospective spouses can enter into a “cohabitation agreement” if living together without an immediate intention to marry. In the case of a cohabitation agreement or a prenuptial agreement or marriage contracts, the Family Law Act of Alberta provides that such agreements may be entered into by persons who are married, intend to marry or are simply in a common- law relationship.
A prenuptial agreement is a signed contract, of which both parties have received full disclosure and obtained Independent Legal Advice which provides for the property division, spousal support, inheritance and other rights of the couple in case of separation, divorce or death in relation to an upcoming wedding. Similarly, a cohabitation agreement is signed by parties prior to deciding to live together, having a child together, or prior to the first two years of cohabitating. The decision to have a prenuptial or cohabitation agreement depends greatly on the specific circumstances and on the individual feelings of the couples involved. The agreements are usually entered into if one partner has something that he or she wishes to keep if the marriage should end. The agreement generally contains provisions regarding division of property and rights in the case of divorce or death of one of the partners.