Prenuptial Agreement

A Prenuptial Agreement is an agreement between two people who are planning to get married. A Prenuptial Agreement is a written agreement, signed by both parties in advance of the date of marriage. It is advisable that the Prenuptial Agreement be drafted by a lawyer, typically the lawyer acting on behalf of one of the parties. Both parties should obtain independent legal advice in signing a Prenuptial Agreement. The Matrimonial Property Act of Alberta contains specific requirements for binding agreements in Alberta. The lawyers providing independent legal advice to the parties are each required to sign Certificates of Independent Legal Advice.

Prenuptial Agreements are drafted in order to reflect the specific intentions and wishes of the parties. Accordingly, Prenuptial Agreements are tailored to reflect the particular issues and situations of these parties. Therefore, Prenuptial Agreements tend to be unique.

Primarily, the purpose of a Prenuptial Agreement is for the parties to determine or settle in advance any legal issues that would otherwise arise should their marriage break down. In other words, a Prenuptial Agreement sets out the rights and obligations of each party which would arise in the event of their separation, rather than leave these decisions to be potentially disputed and litigated after separation. Parties to a Prenuptial Agreement, by coming to their own agreement in advance, typically wish to reduce or eliminate the time and expense, monetary and often emotional, involved in having to engage in litigation or even settlement discussions after separation. Further, the purpose of a Prenuptial Agreement is to provide the parties with certainty as far as is reasonable and possible, as to what would occur with their finances upon separation, rather than leaving these issues to be determined after separation, possibly to be imposed by the Courts or through another unknown process.

The broad issues that Prenuptial Agreements typically deal with are:

• the division of assets or property;
• a waiver by each of the parties in certain assets of the other party;
• responsibility for debts;
• whether or not there will be spousal support paid by either party and, if so, the amount, method of payment and duration.

However, there are certainly many other specific issues that could fall within or outside the above-mentioned issues.

If you are planning to get married, you should speak to a lawyer well in advance of the marriage date about putting a Prenuptial Agreement in place, the issues to be dealt with and the options in dealing with those issues.

Cohabitation Agreement

Cohabitation Agreements are the equivalent of Prenuptial Agreements for unmarried couples who are living together or are planning to live together. If a couple is planning to live together, but also plans to eventually marry, it may be advisable to speak to a lawyer regarding the necessity or advisability of having two agreements, both a Cohabitation Agreement to apply for the duration of their unmarried cohabitation and a Prenuptial Agreement to be effective commencing on the date of legal marriage.

The purpose and intent of putting in place a Cohabitation Agreement is essentially the same as that stated above for a Prenuptial Agreement. However, Cohabitation Agreements differ considerably from Prenuptial Agreements in Alberta due to the different laws which apply to non-married versus married cohabitation. Non-married parties do not fall under the Divorce Act of Canada, nor do they fall under the Matrimonial Property Act of Alberta. The Family Law Act and common law (case law) do, however, apply in order to establish rights and obligations of non-married parties to one another upon separation.

Accordingly, it is advisable for non-married couples who plan to cohabit or are already cohabiting to at least consider, preferably with the advice of a family law lawyer, whether a Cohabitation Agreement is right for them and their situation.