Alberta Prenuptial 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.
Dealing with the Matrimonial Home
The Matrimonial Home is defined in the Matrimonial Property Act in the same way as the “Primary Home” is defined under the Family Law Act with one exception: it is the home of a married couple. Section 1(c) of the Matrimonial Property Act defines the “Matrimonial Home” as property that is owned or leased by one or both spouses. It is or has been occupied by those spouses as their family home. And it is a house (a part of a house) that is a self-contained dwelling unit, a part of a business used as living accommodation, a mobile home, a residential unit (as defined in the Condominium Property Act), or a suite.
When it comes to ownership of the matrimonial home, the parties can agree upon who gets what (if anything) through a Prenuptial Agreement. That said, for the Prenuptial Agreement to supersede the ownership and division of property regime provided for in the Matrimonial Property Act, a number of legal requirements will have needed to be met at the time the parties entered into the agreement (as discussed previously in this blog).
Now, importantly, Part 2 of the Matrimonial Property Act creates certain rights of possession with respect to the “Matrimonial Home”. Specifically, section 19(1) allows a spouse to bring an application to Court for an order that: a spouse be given exclusive possession of the matrimonial home; a spouse be evicted from the matrimonial home; or a spouse be restrained from entering or attending at or near the matrimonial home.
In addition to making such an order, the Court may give a spouse POSSESSION of as much of the property surrounding the matrimonial home “as is necessary, in the opinion of the court, for the use and enjoyment of the primary home”: section 19(2). Finally, an order under section 19 may be made subject to any conditions and for any time that the Court considers necessary: section 19(3).
The bottom line is that, while ownership of a Matrimonial Home may be determined pursuant to a Cohabitation Agreement that survives marriage, rights to possess the Matrimonial Home may not be capable of being enforced.
Specifically, section 19(1) of the Matrimonial Property Act allows a spouse to bring an application to Court for an order that:
- a spouse be given exclusive possession of the matrimonial home;
- a spouse be evicted from the matrimonial home; or
- a spouse be restrained from entering or attending at or near the matrimonial home.
A strong argument could be made that parties cannot contract out of rights to possess the matrimonial home prior to or during their marriage. Unlike with a “Primary Home” under the Family Law Act, a spouse’s right to possess a matrimonial home under the Matrimonial Property Act does not appear to be contingent on a Support order. Furthermore, while section 37(1) of the Matrimonial Property Act contemplates that parties can enter into agreements to allow spouses to determine ownership and division of property (including the “Matrimonial Home”), that section does not mention anything about rights of possession.
Interestingly, in Ontario, section 52(2) of the Family Law Act clearly states that parties CANNOT use a marriage contract to limit a spouse’s right (under that Act) to possess the Matrimonial Home.
FYI, if you’re looking for an Alberta Prenuptial Agreement which avoids creating financial obligations, then you can use this PRENUPTIAL AGREEMENT ALBERTA.
This legal form can be used by married couples in Alberta who wish to avoid creating obligations through their marriage to each other. This particular prenuptial agreement waives support obligations and divides property according to legal ownership (in other words, what’s mine is mine; what’s yours is yours).
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