Family Law in Alberta: Everyone Has a Prenup

There are currently (approximately) 1.8 million married people in Alberta, and roughly 19,000 marriages occur in Alberta each year. It may surprise you to know that every single one of those people has a prenup.

If you are a married person and you don’t remember signing anything, you might just have a terrible memory, or you are most likely part of the vast majority of married people whose prenuptial agreement has been written for them by the government. In Alberta, divorces are governed by three main pieces of legislation: the Divorce Act, the Family Law Act, and the Family Property Act (previously known as the Matrimonial Property Act). Broadly speaking, both the Divorce Act and the Family Law Act provide guidance on parenting issues, and the Divorce Act also sets parameters for who is entitled to receive spousal support, as well as how to calculate it. The Family Property Act sets out the rules for how assets and liabilities accrued before, during, and after the marriage must be divided.

These laws apply to all married persons in Alberta, meaning that you are stuck with the government’s rules on how a divorce should go, unless you and your spouse have specifically entered into a written agreement stating otherwise (and that agreement is accompanied by proper certificates of independent legal advice; a text message from your spouse saying they would “never go after you for spousal support” does not a legally binding contract make).

When my clients are separating, I almost always advise them that it is much better to have some control over the process (aka, by negotiating the terms of a separation agreement), than spending thousands of dollars in litigation, only to have a judge grant an order that does not make sense for your life or circumstances. This goes doubly so for people who are not yet married and are considering whether they should get a prenup. A bit of effort and money upfront could save both you and your spouse from spending thousands of dollars and incurring significant emotional distress in the long run.

“But we don’t have any money! We don’t own anything! If we ever did get a divorce, it’d be totally amicable.” While all of that may be true now, personal circumstances are likely to change over time, and the process of divorcing is often preceded by a lengthy breakdown in effective and productive communication. There is no guarantee that you and your spouse will see eye-to-eye in the event of a separation and you are suddenly required to negotiate spousal support or dividing property. If you do not have a written agreement outlining an agreed upon process for addressing those items, you will be at the mercy of the vague and malleable process written for you by the government.

Plus, compared to days of yore, prenups are no longer meant exclusively to protect the assets of a wealthy businessman from falling into the hands of his second or third trophy wife. More often than not, nowadays, prenups are a way for a couple to write their own rules and set expectations about what feels fair to them, in the context of their relationship, at the outset. And who doesn’t like making their own rules?!

While the majority of clients seeking prenups seem to be those people who are getting married for the second time, I would encourage everyone – young, old, wealthy, or not – to consider speaking with a family lawyer about whether a prenup makes sense for their circumstances. If you and your spouse do decide to forgo entering into your own written agreement, I would still suggest taking a read through the legislation mentioned above, so at least you know what you’re “signing”.

As a side note, if you are a married person who did not sign a prenup prior to getting married, you might be thinking that it’s “too little, too late.” Fret not! If you are already married, but you and your spouse would still like to sign a written agreement regarding parenting, spousal support, or division of property (or any combination thereof) in the event of a marriage breakdown, this can be done through a Marriage Contract or Post-Nuptial Agreement. Marriage Contracts are excellent both for setting broad rules of separation, as well as for addressing singular issues, such as ensuring that the proceeds of an inheritance will be exempted from a future division of property, regardless of whether it’s put into a jointly held asset. 

Please note that nothing in this blog post constitutes legal advice, and no lawyer-client relationship is created as a result of reading this post. This blog is for general information purposes only. You should consult with a lawyer about your specific circumstances before relying on any of the information contained in this blog post.

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