Family Law Agreements (Domestic Contracts)
Domestic contracts—whether they are between individuals who have not yet married, or spouses who are separating—are subject to the same rules as are other contracts. For example, for a contract to be enforceable the parties must have had the legal capacity to enter into an agreement, and they must have done so voluntarily (not under duress or but for the other party’s undue influence or unconscionable conduct).
Domestic contracts that deal with family property must meet extra criteria. For example, a domestic contract dealing with family or matrimonial property will not be enforceable unless both of the parties have had independent legal advice and the contract follows the format prescribed in the Family Property Act.
Although the courts often defer to the parties’ private agreements, the court retains ultimate jurisdiction over parenting and child support. Also, parents are not able to contract out of their child support obligations, as this is the child’s right.
Prenuptial Agreements (Prenups)
Given the high divorce rate, it is common—and often a good idea—to consider a Prenuptial Agreement before getting married. A Prenup can help you protect your property, your income, and save you time and money if the marriage breaks down. Prenuptial Agreements typically deal with the following issues:
- Parenting – Often when spouses have children from prior relationships, they will want to “fix” their parenting rights and responsibilities for those children, should their new marriage break down. This can be a way of providing stability for the children of the parent’s previous relationship. Occasionally, would-be spouses will also try to negotiate parenting arrangements for the children which they have together.It is important to remember that no matter what a prenuptial agreement may say about parenting, the court has the final say, and will consider only the children’s best interests in making its decision. Therefore, parenting clauses in a prenup may not always be enforceable. Generally, parenting clauses respecting children from prior relationships are more likely to be enforced than those dealing with the shared children. Agreements reflecting future children are not enforceable.
- Child Support – Spouses may include clauses which attempt to “fix” the amount of child support that the parents would have to pay after separation. Such child support clauses may be enforceable provided that they adequately provide for the children of the marriage.
- Spousal Support – Spousal support is usually included in Prenuptial Agreements. Spouses can either waive their rights to spousal support, or agree to the amount/duration of spousal support in advance. This provides them with certainty should the marriage end. Courts have typically upheld spousal support agreements.
- Family Property – Couples typically decide how they will divide the family property in a Prenuptial Agreement. Often, couples will follow the broad-strokes of the Family Law Act, however, they will add additional protections in place respecting their property. For example, a spouse may want to protect the increase in value of their stocks, or they may want to preserve their interest in their corporation. Courts have typically upheld family property agreements, provided they follow the legislation’s guidelines.
Although no Prenuptial Agreement is “bulletproof”, spouses can make their agreements stronger by obtaining independent legal advice from a lawyer, and exchanging comprehensive financial information, before signing the Prenup.
Cohabitation Agreements (Common Law Partner Agreements)
Cohabitation Agreements deal with the same issues as do Prenups, however, in this case the parties are Adult Interdependent Partners, also known as “common law” spouses. These types of agreements are increasingly common because young people are foregoing or delaying marriage—many people want to “test drive” the living situation before committing for the long haul.
Living together without an agreement in place can be dangerous. Most people do not know that “common law” spouses are now entitled to a share of the family property—just like married couples—provided they meet the criteria under the Family Law Act.
If you are living together in relationship of economic interdependence, you would do well to contact a family lawyer who will be able to explain your legal rights and responsibilities. If nothing else, a Cohabitation Agreement will give the cohabitants peace of mind should they separate. Oftentimes, Cohabitation Agreements end up forming the basis for a Prenuptial Agreement.
Postnuptial Agreements (Marriage Contracts)
The difference between a Postnuptial Agreement and Prenuptial Agreement is when it is signed. A Postnuptial Agreement is entered into after the spouses are married. This type of contract deals with the same issues as a Prenup, and is typically signed when the spouses are going through a “rough patch” in the relationship, or their financial circumstances have changed dramatically. For example, spouses may enter into a Postnuptial Agreement to offer extra protection to the value of an inheritance or a business venture.
Also known as a Minutes of Settlement or Settlement Agreement, a Separation Agreement is a legal agreement between separated or divorcing spouses. Both unmarried and married spouses may enter into Separation Agreements
Separation Agreements deal with the same issues as a Prenuptial Agreement (parenting, child support, spousal support, and family property), however, the parenting and child support provisions are much more likely to be enforceable in a Separation Agreement. This is because spouses ought to know all of the key information before entering into this type of agreement.
Before signing a Separation Agreement, it is very important that you (or your lawyer) has reviewed all of the relevant financial information from your spouses, and that you have had independent legal advice from a lawyer. Without this, the Separation Agreement may not be enforceable in court.
Independent Legal Advice
In Alberta, a contract dealing with the division of family property is not enforceable unless both spouses have had independent legal advice. Because of this, it is very important to talk to a lawyer before signing an Agreement—whether it be a Prenup, Postnup, or Separation Agreement.
A family lawyer will be able to explain your rights and responsibilities under the agreement, as well as the legal risks involved. A lawyer will also be able to provide you with an objective legal opinion, which can make all the difference during an emotionally-charged breakup,.
Ask a Lawyer about Prenuptial & Separation Agreements
We hope you found this legal information helpful. Feel free to call us at Morrison LLP at 587-758-1099 if you have any questions about your prenuptial or separation agreement—the first 30 minutes are free.
Although we are based in Edmonton, our family & divorce lawyers—and practicing mediators—are proud to serve much of northern Alberta, including the following communities:
- Edmonton & Area – Sherwood Park, Beaumont, Leduc, Fort Saskatchewan, St. Albert, Spruce Grove, Stony Plain.
- North – Athabasca, Morinville, Westlock, Gibbons, Barrhead, Redwater, Peace River, High Level, Fort McMurray.
- West – Drayton Valley, Edson, Hinton, Whitecourt, Devon.
- South – Camrose, Wetaskiwin, Millet, Calmar.
- East – Vegreville, St. Paul, Cold Lake, Bonnyville, Vermillion, Wainwright, Tofield.