An Introduction to Alberta Prenuptial Agreements

A prenuptial agreement includes provisions about how specific assets and property will be protected in the event of a divorce.

Prenuptial agreements are contracts made before marriage but do not take effect until after the marriage takes place. They can deal with property owned by both spouses together or by each spouse separately.

Prenups are often used by couples who want to protect themselves and specific assets if something happens after they get married.

Prenuptials are contracts that protect both parties’ interests. If you need help with a prenuptial agreement or have a legal issue with marriage agreements, you should talk to a family lawyer and seek legal advice.

Should my future spouse/partner and I sign a prenuptial agreement?

Prenups are considered a legal marriage contract that is signed before getting married. They ensure that in the event of separation, any money, property or assets you own will be ineligible from the division of property and will remain your property post-divorce.

Some people think prenups are a bad idea because it sets an uncomfortable tone from the start of the marriage, especially if one party is adamant about protecting their personal property.

The truth is, prenuptial agreements can be very helpful when during the breakdown of a marriage or during a divorce. They help avoid unnecessary conflicts between married couples during the divorce process, especially during the division of property. They also make sure that both parties walk away with the assets they deserve after the divorce.

A similar agreement can also be used to protect your assets and rights during a common-law relationship.  The recent changes to property division in the Family Property Act have made it even more important for Adult Interdependent Partners (unmarried couples) to consider drafting a Cohabitation Agreement with a family law lawyer.  More on this below.

Do you need a lawyer to create a valid prenup in Alberta?

In Alberta, it is not currently required for you to have a lawyer draft a prenup.  However, it is advisable to work with a family law lawyer to draft a legally-sound prenuptial agreement to avoid any unfortunate outcomes for either party in the event that certain aspects of your situation were not properly documented.  This could lead to assets and property you own ending up in the property of your ex-spouse/ex-partner.

What does a prenuptial agreement cover?

A prenuptial agreement should cover key financial aspects of the marriage, including assets, money, property, and debts brought into the relationship by both spouses.  Prenups can also outline the rights and obligations regarding access and custody of children from a previous relationship.  Instructions for dividing shared properties should be specified clearly, therefore, reinforcing the importance of seeking legal advice from a family lawyer experienced in drafting prenuptial agreements.

Requirements for a prenuptial agreement

A prenuptial agreement is an important document that should be signed by both parties prior to marriage. Each party needs to understand what the agreement means and why they need to sign it. Each spouse/partner must agree to the terms of the agreement, and each spouse signs the agreement freely and voluntarily without any pressure.

Both spouses should provide a full and complete financial disclosure before commencing their relationship.  This ensures that the agreement cannot be challenged in the future. The terms of the Prenuptial Agreement in the context of the Divorce Act are nicely explained in Miglin v. Miglin – “the extent to which the agreement represents a final settlement of the issues, negotiated under unimpeachable conditions, to which both parties agreed and on which each of them intended to rely. It is only then that the judge will consider whether the agreement must nevertheless be set aside in full or in part because it is not in substantial compliance with the broader objectives of the Act.”

Cohabitation Agreements for You and Your Partner

If you are cohabiting with someone (same-sex or not) and want to formalize your relationship with your partner, you may want to consider creating a cohabitation agreement. A cohabitation agreement is similar to a prenuptial contract but focuses on the rights and responsibilities of the couple as they live together. It’s important to note that cohabitation agreements are only available under the Family Property Act.

How does a cohabitation agreement differ from a prenuptial?

A cohabitation agreement will focus on the rights and responsibilities of two adults who are living together and determines what rights and responsibilities each party has in case their relationship ends in future. In contrast, a prenuptial agreement covers all aspects of the marriage and its dissolution.

What are the downsides of a prenup?

Prenuptial agreements are generally accepted by courts in Canada. However, the  Court do not always accept them because they must follow certain guidelines. In this case, the  Court will analyze whether or not the agreement was properly executed. If it wasn’t, the Court may not rely on the agreement-.  Once again, seek the legal advice of an experienced lawyer who knows the nuances of creating a legally sound prenup.

Divorce cases can take longer than usual because of the complexity involved in dividing property between spouses.  Luckily, a prenup can simplify the process when done properly.  An experienced divorce lawyer will help you get this done.  Contact Chahal Law today at (780) 447-2799 or contact us online to request an initial consultation.