Protect yourself with a legal agreement or court order

What is a Separation Agreement?

A Separation Agreement is a contract that records a settlement of the issues that arise when a marriage OR common-law/Adult Interdependent Relationship ends.

A Separation Agreement helps each party lay out their responsibilities and obligations based on their agreement when separating.

In order to create a Separation Agreement, the terms being settled must be agreeable by both parties - and in the case where a matter cannot be resolved, we can assist the parties in coming to a mutual resolution through Mediation.

When is a Separation Agreement required?

In most cases, a legal Separation Agreement is requested by couples (when a breakdown in their relationship has occurred) in order to fully resolve all matters such as assets, liabilities, pensions, spousal support, child support, parenting, access/visitation and furthermore.

Separation Agreements can be an effective and affordable way of settling issues to ensure couples have fairly divided Family Property, and protected themselves from any possible future claims their spouse may have.

In order to ensure your agreement is considered legally binding within Alberta, the parties must obtain a Certificate of "Independent Legal Advice" on their agreement.

*A Separation Agreement may also be called: "Divorce and Property Agreement" or "Minutes of Settlement."

Protecting your Pension

Pension is considered Family Property, and in order to fully protect your pension, or divide it, a legal Separation Agreement or Court Order will be required. To protect or divide pension in a Separation Agreement, the parties must have obtained Independent Legal Advice.

Spousal buy-outs/Mortgage refinance/Sale

When there is a Family Home, or any property held between the parties that requires a division such as a spousal buy-out with or without mortgage refinance, or a sale of a property, then a Separation Agreement will most likely be required by your financial institution and will be required at the time of sale to ensure the parties have complied with the terms and conditions within their agreement.

Matrimonial Debt

While some parties mainly require a Separation Agreement to ensure their assets are protected, some may require an agreement to ensure who is responsible for the payment of certain debts held solely or jointly between the parties.

Spousal Support/Alimony

In the case where spousal support may be payable, it is important to first determine if the spouse is entitled to support, and if so, the amount and duration of support.

If spousal support is not being payable, then the parties can mutually waive the claim or reserve the claim for a later time in a Separation Agreement with Independent Legal Advice (ILA).

Independent Legal Advice (ILA)

What is Independent Legal Advice (ILA)?

In Alberta, to ensure your Separation Agreement is legally binding and enforceable, both parties are required to have Independent Legal Advice (ILA) when fully executing your agreement, which entails the following:

Independent Legal Advice is given when your lawyer tells you what the law probably entitles you to, given the facts of your situation, therefore, before you can get that advice, the lawyer needs a certain amount of information about your relationship, particularly about each party's financial position. The exchange of financial disclosure does not always involve pulling up bank account records, credit card records, etc... if each of you are confident in your knowledge of the other person's financial situation, then the financial disclosure could probably be completed if each side swore a statement laying out their approximate incomes, assets, and liabilities, and sent their sworn statement to the other side.
If each party receives independent legal advice before signing, they know if they are getting more or getting less than what they legally could get and are making that decision knowingly. Therefore, it would be tough for them to have the agreement changed later on.

Lastly, most financial institutions will require ILA for a mortgage refinance/buyout, and if you and/or your spouse have an employment pension, then ILA or a consent property order may be necessary. A self draft agreement is not sufficient, nor accepted for these purposes.

Is my agreement enforceable?

The Family Law Act grants the court the power to void a Separation Agreement or any clause in that contract if:

a party, or neither party, provided a full financial disclosure without Independent Legal Advice (ILA);
a spouse failed to disclose an asset, liability, or any financial subject to the other spouse at the time of completing the Separation Agreement;
if a spouse signs the agreement without knowing and understanding its contents;
if the spouse was not sound of mind while signing the agreement, or if the spouse signs the agreement while being forced, coerced or influenced;
if the Agreement was not prepared in accordance with the law of contract.

It is for these reasons that independent legal advice (ILA) is always recommended to ensure everyone understands their rights, responsibilities and obligations before they sign their Separation Agreement. A lawyer providing ILA will also review the financial disclosures, and explain if the contract is fair, valid and enforceable.

DivorceEZ can refer parties to economical third-party Independent Legal Advice when completing a Separation Agreement.

Consent Matrimonial Property Order

Looking to finalize your divorce and settle property matters?

An alternative to completing a Separation Agreement, is to complete a "Consent Matrimonial Property Order" - this is an order that is completed and signed by both parties, filed at court and once granted, becomes a court order.

Separation agreements are not mandatory to complete in order to file for a divorce in Alberta, therefore, if you are looking to finalize your divorce and protect/divide any property matters, we can complete these orders for you at the same time. Completing a property order through the courts is an inexpensive and speedy resolve in ensuring you have taken care of your property matters in the most effective and protective way. Consent property orders may not require the need of obtaining Independent Legal Advice.

If you have completed a legal separation agreement or consent property order, they can be incorporated into finalizing the divorce decree.

When the parties are not fully agreeable on all matters, and are willing to amicably cooperate in coming to a resolution, then DivorceEZ can assist parties through Mediation. Mediation can be a very beneficial factor to completing a separation agreement or property order.

Interested in Mediation? Click here