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Jun

30

Alberta Cohabitation Agreement (Part 9): independent legal advice

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Alberta Cohabitation Agreement

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to a cohabitation agreement in Alberta, you should seek professional assistance.

Is Independent Legal Advice Required?

As previously discussed in my blog, there is a requirement under the Family Law Act for independent legal advice to have been received by parties entering into a Prenuptial Agreement that deals with SUPPORT. Specifically, under the Family Law Act, for support obligations to be waived through a Cohabitation Agreement, that Agreement must be in writing, must be equitable, and:

  • the adult interdependent partners must have received independent legal advice upon entering intothat Agreement;
  • the adult interdependent partners must not have married each other after entering into the agreement; and
  • one of the adult interdependent partners must not be in receipt of government financial assistance without reasonable support from the other adult interdependent partner.

But what about a Cohabitation Agreement that survives marriage and that deals with ownership and division of property? At first glance, it may appear as though independent legal advice is NOT a formal requirement for married couples to deal with their property. K.L. Sisson J. stated the following at paragraphs 134 and 135 in Sporring v. Collins, [2009] A.J. No. 944:

134 There is no authority in Alberta that requires couples who enter into agreements concerning the ownership and division of property to receive independent legal advice before they enter into such an agreement or permits the court to set aside such an agreement simply because it was entered into without independent legal advice.

135 Corbeil v. Bebris, 49 R.F.L. (3d) 77 (ABCA, 1993) considered the enforceability of a separation agreement governed by the Matrimonial Property Act. At paragraph 13 the court states:

Moreover, no rule in equity or contract invalidates an agreement simply on account of a lack of independent legal advice. The function of the advice, in that context, is to remove a taint that, left unremoved, might, according to contract or equity law, invalidate the contract. Judges cannot therefore simply say that an agreement is unenforceable for lack of independent legal advice. At the very least, they must first find a taint.

That said, the better view is that independent legal advice is likely a formal requirement under the Matrimonial Property Act for a Prenuptial Agreement to deal with matrimonial property issues. Section 38 of that Act requires an ACKNOLEDGMENT be made before a lawyer who does not represent the other spouse. In Hinton v. Hinton [2004] A.J. No. 551, the Alberta Court of Queen’s Bench noted that the Acknowledgment “is the independent advice requirement which has been provided for by the Legislature of Alberta in relation to enforcement of agreements which are said to dispose of matrimonial property…”. Regardless of whether an ACKNOWLEDGMENT made before a lawyer constitutes INDEPENDENT LEGAL ADVICE, parties entering into a Prenuptial Agreement should still receive independent legal advice prior to entering into that agreement. As the Alberta Court of Queen’s Bench noted in Cunningham v. Cunningham, [2009] A.J. No. 56 (with respect to a marriage contract):

19 The agreements were signed with the benefit of independent legal advice. There is nothing in the evidence which suggests any basis to render unenforceable or void the parties’ clear agreement. To the contrary, I should give effect to the agreement, which was negotiated by two mature people with the benefit of independent legal advice in compliance with the formal requirements of the applicable legislation (Hartshorne v. Hartshorne, [2004] SCJ No. 20; Hinton v. Hinton, [2008] A.J. No. 336, 2008 ABQB 189; and Mastalerz v. Mastalerz, [2007] A.J. No. 702, 2007 ABQB 416).

Basically, the presence of independent legal advice helps to eliminate (except in the most exceptional circumstances) the ability for one party to have a court set aside the Prenuptial Agreement on the basis that it did not understand the nature or consequences of the Prenuptial Agreement or to set it aside otherwise in accordance with the law of contract. Basically, having an independent lawyer gives the impression that the lawyer’s knowledge and understanding is transferred to the party. If it didn’t mean that, then the idea of having independent legal advice would be meaningless. One other thing: it is best not to have a party or their lawyer recommend a lawyer for the purpose of obtaining independent legal advice.

FYI, if you’re looking for a Cohabitation Agreement for Alberta that avoids creating financial obligations, then you’ve come to the right place:

Cohabitation Agreement – Terminates Upon Marriage

This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) with each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement terminates when the parties get married to each other. Here’s a sneak peak of the video guide that comes with this legal form:

If you want the cohabitation agreement to continue past marriage (i.e. continue to be valid and enforceable past marriage), then you can check out the cohabitation agreement below:

Cohabitation Agreement – Continues Past Marriage

This legal form can be used by non-married couples in Alberta who wish to avoid creating obligations through their cohabiting (i.e. living together) and their marriage to each other. It essentially becomes a Prenuptial Agreement or Marriage Contract when the parties marry each other. This particular cohabitation agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours). This cohabitation agreement continues to be valid and enforceable past marriage.

Remember: all of our legal forms are lawyer-prepared, customizable (they come in .doc, .wpd, and .rtf formats), and affordable (prices range from $17 to $97, depending on the legal form packages). The legal forms are regularly updated. Best of all, they come with guidance in the form of a video tutorial (watch an example of how to customize the legal form) and two written guides (one that addresses the legal issues you should be aware of and a second which is entitled “Is My Legal Form Valid and Enforceable?”).

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