Agreements are legal, binding contracts addressing the rights of spouses on marriage, cohabitation or relationship breakdown. They are negotiated by the parties with their lawyers’ assistance. Most cases of separation or divorce end in a binding agreement, not in a court order. Agreements can be negotiated before (Pre-Marriage or Co-Habitation Agreements), during (Marriage Contracts) or after (Separation or Divorce Agreements).
“Separation Agreement” is a broad term covering a legal contract that sets out the parties’ understandings and commitments around parenting and financial issues. It usually follows a process of financial disclosure and negotiations.
It can be very detailed (e.g., the time the children are transferred on Christmas Day each year) or very general (e.g., the parenting of the children shall be shared in an equal fashion as the parties agree from time to time) allowing for maximum flexibility. Your lawyer will review the many options with you and provide advice and guidance.
These Agreements are typically designed to remove a spouse’s right to apply to a Judge to share a property under the law at the time of the divorce. These Agreements are not only for the wealthy, they are useful to bring clarity to both parties’ expectations before they move in together or marry. A Pre-Nuptial Agreement provides an agreed form of property sharing and sometimes limits spousal support once you are married. They can address unmarried common law relationships as well
Congratulations—you’re about to get married, or to live together for the foreseeable future! This is the ideal time to decide how you and your partner will handle your finances throughout your relationship.
Most of us have heard of “pre-nups” signed before marriage to ensure that a wealthy spouse’s assets are protected in case of divorce. These agreements are typically designed to remove a spouse’s right to apply to a judge to share property under the law at the time of the divorce. A pre-nup provides an agreed form of property sharing and sometimes limits spousal support once you are married. They can address unmarried “common law” relationships as well.
We understand that negotiating the terms of your potential relationship breakdown before or shortly after marriage is a distasteful prospect for many. We get it. It’s not romantic. You don’t go into a partnership like marriage thinking about failure.
Thinking about death and your surviving children is also hard, but planning for it at a time when heads are clear just makes sense. The same can be said of marriage agreements.
But here’s the thing: half of all marriages and more than half of common law relationships end at some point and the time to address what the parting of ways looks like is, in our experience, much simpler well ahead of the time, when you’re getting along, than at the time when you may not be.
Think about a pre-nup or cohabitation agreement as an insurance policy that allows a couple to know what will happen financially if one—or both—of you decides to move on. A pre-nup can prevent conflict and save you tens—or hundreds—of thousands of dollars in legal and other costs.
Creating a pre-nup agreement can lay the foundation in your marriage for clear communication, safeguard your assets, protect you from your spouse’s debts and outline how to reduce conflict should something happen in the future.
A pre-nup—or marriage contract—is often signed before the marriage, but can be signed afterwards as well. As long as the contract is valid (i.e., there is no fraud, hiding assets, fudging numbers, duress, mental health issues, etc.), the law in Alberta does allow spouses to opt out of a future review of their property division by a judge.
Cohabitation agreements, pre-nups or marriage contracts can also address future rights for spousal support on separation as well as rights on death before separation or divorce. Spousal support is not as simple to opt out of as property rights but there are ways to make a waiver of spousal support, or a set term and amount of support, as binding as possible.
There may be related estate planning, foreign jurisdiction, tax and other issues that are unique to your circumstances. Experienced advice now will be insurance against unwanted and unexpected consequences in the future.
At Moe Hannah, we practice exclusively in family law and have years of experience with marriage agreements, ensuring that you know everything you need to know about your risks and options. We also deal with businesses, companies and trusts on a daily basis and can tailor the agreement to meet all of your needs.
Get in touch with us to book a consultation.