While the idea of creating a pre-nuptial agreement or cohabitation agreement may seem unromantic, it can offer several benefits for individuals entering long term relationships or marriages.
Prenuptial/Cohabitation Agreements:
A Prenuptial or Cohabitation Agreement can be used to protect assets, family wealth and any contributions parents have made, or intend to make, to their family members. If a parent wants to make a gift, transfer properties or assets, or leave inheritance to an adult child, but protect them from division in the event of a future divorce/separation, a prenuptial agreement or cohabitation agreement is essential.
A prenuptial/Cohab Agreement is also to ensure that assets owned by either party prior to the marriage or cohabitation and/or assets that may be received during the marriage or cohabitation through inheritance or trust distributions, will be solely retained by that party in the event of a dissolution of the relationship. This would include any appreciation in the value of such assets that may occur during the marriage/cohabitation. It will also provide the parties with a clarification of ownership by outlining which assets and debts each spouse brings into the relationship and could protect business interests. A Prenuptial/Cohab Agreement can also specify how existing debt, or any future debt is handled and it can establish terms for partner support handled upon a relationship breakdown which can avoid contentious disputes arising in the future. Prenuptial/Cohab agreements can be customized to address the unique needs and circumstances of the couple, providing a flexible and individualized approach to financial and legal matters.
The exchange of information, preparation and execution of a thorough Prenuptial/Cohab Agreement can be critically important for ensuring that your interests are preserved and maintained in the event of a relationship breakdown. In Alberta, A Prenuptial/Cohab Agreement should not be completed without full information sharing and signed with Independent Legal Advice.
Post-Nuptial agreements:
Already married or in an Adult Interdependent Relationship (AIP) and worried about your assets? A postnuptial agreement or marriage contract is entered into after the parties are already married and can be a critical document to ensure that generational wealth/inheritance are protected in the event of a divorce. Postnuptial agreements often become important where one spouse accumulates substantial wealth after the marriage date in a manner that was not necessarily anticipated at the time of marriage. An example could be one party started a business that becomes highly successful or receives a valuable inheritance from a family member. In a post-nuptial agreement, the parties negotiate the terms together, and in Alberta, it is important the parties consult a lawyer and receive Independent Legal Advice.
Family Law Act section 37 and 38 of the Family Property Act set out the requirements for validity of all domestic agreements affecting property, which includes prenuptial, cohabitation and post-nuptial agreements. Section 37 expressly provides that the usual rules for division of property under the Act will not apply where the spouses have entered into a written agreement that complies with the requirements for enforceability (Ie. Independent Legal Advice)
Under section 38 of the Act, the agreement must be accompanied by a written acknowledgement, signed by each spouse apart from the other and with the assistance of separate legal counsel, confirming that he/she is aware of the agreement’s nature and effect, aware of potential future claims that he/she may have under the Act and intends to give them up to the extent necessary to give effect to the agreement, and executing the agreement freely and voluntarily without any compulsion on the part of the other party.
Consulting with a lawyer is crucial for drafting a comprehensive and valid prenup that aligns with applicable laws. Discussing and creating a prenuptial agreement requires open communication about financial matters, future goals, and expectations. This process can strengthen the couple’s understanding of each other’s financial attitudes and promote transparency. Additionally, the decision to create a prenuptial agreement should be made based on individual circumstances, and couples should communicate openly and honestly about their expectations and concerns.
At the end of the day, having a prenup or cohabitation agreement may seem stressful to think about and a difficult topic to bring up with your partner, but it can streamline the process by providing a clear framework for asset division, potentially saving both parties time and money in legal fees.