Calgary Edmonton Marriage Agreement Lawyers help parties entering into marriage create a mutually agreed framework to guide their marital obligations and rights and a plan to fairly allocate family property and debt and financial resources if the marriage ends. Our lawyers also help negotiate and draft Calgary Edmonton prenuptial agreements and Calgary Edmonton cohabitation agreements. The goal is to minimize conflict and legal expenses if the relationship breaks down. Peter Graburn managing lawyer at our Calgary Edmonton family law office explains the tips and traps of Calgary and Edmonton Marriage agreements.
Calgary Edmonton Marriage Agreement Lawyers
Separation and divorce is a reality in family relationships – Statistics Canada indicates that some 38% of marriages in Canada end in divorce. While it is obviously not possible to predict which family relationships will or will not survive, it is possible to clarify how the many issues involved in these relationships (ie. children, financial support, division of family property, etc.) will be resolved upon relationship breakdown. The best Calgary Edmonton Marriage Agreement Lawyers know the way to be prepared for this is with a properly drafted, and fair and reasonable, Marriage Agreement.
“Common-law” and married spouses in Alberta have had similar rights and responsibilities upon relationship breakdown for many years, except regarding the division of their joint family property. In January 2020, the new Alberta Family Property Act extended to Alberta Adult Interdependent Partner (AIP – or common-law) spouses the same property rights as had previously only applied to married spouses. An important provision of the new Family Property Act (as in its predecessor, the Matrimonial Property Act) is section 37(1), which permits spouses to ‘opt-out’ of the legislation (and the statutory division of family property set out in the Act) if the spouses:
“have entered into a subsisting written agreement with each other that is enforceable under Section 38 and that provides for the status, ownership and division of that property.”
Types of Agreements
But our award-winning Calgary Edmonton Marriage Agreement Lawyers explain that these agreements do not only apply to the division of family property, and can include other issues upon separation and divorce, including financial support and (to a lesser extent) children. But what are these “written agreements” and do they always hold up? Calgary Edmonton Marriage Agreements can go by various names depending on what stage of the family relationship they are entered into, including:
- Calgary Edmonton Cohabitation Agreements – for AIP couples who do not intend to get married;
- Calgary Edmonton Prenuptial Agreements – for couples who do intend to, or are getting, married shortly, and;
- Calgary Edmonton Separation & Divorce Agreements – for AIP and married couples on the breakdown of their relationship.
Challenging Marriage Agreements
But are these agreements always valid and enforceable? Do they always stand up to challenges by a dissatisfied ex-spouse? Not always. There are many grounds for challenging and possibly overturning these agreements (as found in the following case law), including:
- lack of statutory requirements (Nasin);
- duress, undue influence, oppression, and psychological vulnerability (Miglin);
- lack of financial disclosure or knowledge (Rick v. Brandesema, Brown v. Silvera, etc.);
- lack of reasonable independent legal advice (Brosseau, Corbeil, Webb vs. Birkett, etc.), and;
- unconscionability (Mastalerz).
Fairness in Marriage Agreements
But it is this last ground for challenging and possibly overturning Calgary Edmonton Marriage Agreements that should be given particular attention. Care must obviously be taken in certain circumstances (ie. physical, emotional, and psychological vulnerability of the other spouse) to ensure the agreement is not overturned on those grounds. But it is equally important to make sure the terms of a Marriage Agreement are fair and reasonable so as not to be found “unconscionable” (and therefore unenforceable) by the Courts. The test for finding a Marriage Agreement to be so unfair as to be unconscionable is a high one. In Alberta, the agreement must be so bad as to “constitute a fraud” upon the other spouse (Mastalerz vs. Mastalerz, 2007 ABQB 416). In Ontario, the circumstances must “shock the conscience of the court” (Serra vs. Serra, 2009 ONCA 105). So while the grounds for finding a Marriage Agreement to be so unfair as to be unconscionable are high, so are the consequences.
So, do Calgary Edmonton Marriage Agreements always hold up? Not always, but usually, if properly drafted and they are fair and reasonable. Whether signed at the beginning or end of a family relationship, Calgary Edmonton Marriage Agreements provide certainty and predictability as to how important issues that may otherwise cause conflict on relationship breakdown (ie. division of family property, spousal support, etc.) will be resolved. For general info click here.
MacLean Family Law has Offices across Canada including downtown Vancouver, Calgary, Toronto, West Kelowna, Surrey, Richmond, Victoria, and Fort St. John.
Calgary Edmonton Marriage Agreement Lawyers assist their Clients to negotiate and conclude properly drafted and fair Marriage Agreements, and can also assist their Clients challenge previously signed Marriage Agreements that are not. If you have questions concerning Calgary Edmonton cohabitation agreements, Calgary Edmonton prenuptial agreements reach out to our experienced Calgary Edmonton Marriage Agreement Lawyers.