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Jun

30

Common law partner agreement (Alberta) – Part 8: Tips on enforceability

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Common Law Partner Agreement (Alberta)

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.

Tips to avoid having your agreement unenforceable

Based on the jurisprudence, here are some tips to avoid having your Cohabitation Agreement rendered invalid and unenforceable by a Court:

Dealing with Support? Get Independent Legal Advice

Section 62(1) of the Alberta Family Law Act allows an adult interdependent partner to enter into a written agreement in which they agree to release the other adult interdependent partner from liability for support. The Court may make a Support Order that differs from this agreement on the basis that the adult interdependent partner who is challenging the agreement “entered into the agreement without receiving independent legal advice”: section 62(3). As such, if your Cohabitation Agreement deals with support, you WILL need to have BOTH parties obtain independent legal advice. That legal advice will usually be written out as a short document called Certificate of Independent Legal Advice from a lawyer.

Now, other than this legislative requirement to obtain independent legal advice, it’s good for both parties to have it in order to avoid having a party later claim that they didn’t understand or appreciate the nature or consequences of the Agreement. In other words, you can prevent against substantive or procedural deficiencies with the agreement. This also helps avoid arguments that a party was pressured or threatened into signing. One “no-no” that can be easily avoided is referring the other party to a lawyer. There are lots of lawyers out there who can review the Agreement, advise the other party, and render a certificate of independent legal advice; leave it to the other party to do this for themselves. Things can look bad for you if you arrange to do it for them!

Negotiate the Agreement

There will always be some issues that have to be negotiated, regardless of how significant or trivial they may appear to some people. The fact of the matter is that evidence of negotiation (i.e. that a party reviewed and put forward their own position – and perhaps even compromised to get a result) strengthens the view that the Agreement is valid and enforceable. Negotiating also means giving enough time for the parties to review and revise the Agreement; rushing things before the period of cohabitation begins could be disastrous!

Provide Adequate Disclosure

Adequate disclosure depends on the circumstances. Clearly, the list of assets, liabilities, income, etc. listed in Schedule “A” is a great start. But what about providing values? If it’s possible to put down approximate values of the most substantial items (e.g. assets, liabilities, etc.), then that would be a good idea. Sometimes, the person making disclosure can only guess – perhaps based on their knowledge.

Draft Appropriately

The final agreement should reflect the negotiated agreement between the parties. Clear and simple language should be used. This will prevent the other side from saying that they didn’t understand the terms of the agreement. It will also help prevent a court from using its own interpretation to fix things. Remember: mistakes will not be looked upon favourably – particularly against the party who drafted the final Agreement!

Will the Cohabitation Agreement survive Marriage? Get a Written Acknowledgment

As previously discussed on this blog, if the parties to a Cohabitation Agreement are contemplating getting married, they will each be required to make a written acknowledgment before a lawyer. Without such an acknowledgment, the Cohabitation Agreement may not supersede the ownership and division of property regime provided for in the Matrimonial Property Act.

By the way, if you’re looking for a Cohabitation Agreement in Alberta that either terminates upon marriage or survives marriage (and becomes a prenuptial agreement or marriage contract), 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. 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.

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