Certificate of Independent Legal Advice for Alberta Property Agreements

You have been handed a prenuptial, postnuptial or cohabitation property agreement, and someone has said you need a lawyer's certificate before you sign. In Alberta, the signed acknowledgment is what makes a property agreement enforceable under the Family Property Act, and without it the default division rules are not replaced.

This article explains what the Family Property Act asks for, what the acknowledgment says, what can go wrong without it, and how it differs from the rules on support. It is general information, not advice on your situation.

This article covers the law of Alberta.

Is the certificate required in Alberta?

Yes, in effect. Part 1 of the Family Property Act, the default division rules, does not apply to property covered by a written agreement between spouses or adult interdependent partners that is enforceable under section 38. An agreement that meets section 38 replaces the default rules for the property it covers.

Section 38 is the Alberta statutory form of independent legal advice for property agreements. It is more than advice: it is the party's written acknowledgment, made before a lawyer who does not act for the other party. People often call the signed document the ILA certificate.

The same requirement applies to a postnuptial agreement made after the wedding. Nothing in sections 37 and 38 requires an agreement to be made before marriage, but it must meet the same formalities.

What the acknowledgment must say

Each party must acknowledge in writing, apart from the other party, three things:

• That they are aware of the nature and effect of the agreement.
• That they understand their possible future claims under the Act and intend to give them up as the agreement provides.
• That they are executing the agreement freely and voluntarily.

The acknowledgment must be made before a lawyer other than the lawyer acting for the other party. Each person needs a lawyer who is not the other person's lawyer. That lawyer does not have to be a different lawyer from the one acting for you.

What happens without it

If the agreement does not meet section 38, it does not displace Part 1 of the Family Property Act. The default rules can apply, and the court can still consider the terms of an oral or written agreement as one factor under section 8(g).

The Act has no separate section giving a judge a general power to set aside a compliant agreement as unfair. Enforceability turns on sections 37 and 38. That is why getting the formalities right matters.

The default result for property acquired during the marriage that is not exempt is an equal distribution, unless that would not be just and equitable. Exempt property, such as gifts from third parties, inheritances and property acquired before the marriage, is treated differently. A failed agreement falls back on these rules.

Other points that affect enforceability

• Prenups: an agreement made before marriage is unenforceable after the marriage unless it is clear that the parties intended it to apply or continue to apply afterward, so it should say so expressly.
• Postnups: that extra statement of continuing intent is not required for an agreement made after the marriage.
• Void marriages: an agreement is unenforceable by a spouse who knew or had reason to believe the marriage was void, and the same applies to a person who knew or ought to have known there was no valid adult interdependent relationship.
• Older agreements: agreements enforceable under the earlier law when signed remain enforceable, and are judged by the rules in force when they were made.

An agreement can say how property is divided on separation, on becoming former adult interdependent partners, or on dissolution of the marriage. It can cover property owned at signing or acquired later.

Support and children are a different test

The property acknowledgment does not cover everything in a domestic contract. A spousal support release is permitted by the Family Law Act, but it is subject to section 62(3). A court may not make an order that differs from the agreement unless it is satisfied the agreement is inequitable and one listed circumstance exists. One of those circumstances is that the person challenging it signed without independent legal advice.

Parents cannot bind the court in advance on parenting time or decision-making, and the court considers only the child's best interests.

A written child support agreement does not prevent a person from applying for a child support order, and a child support order ends any earlier child support agreement. The court may depart from the guideline amount where it would be inequitable given special provisions for the child's benefit, or, on consent, where reasonable arrangements have been made for the child's support.

What to do next

• Ask for the draft agreement well before the signing date so you have time to read it.
• Book your own lawyer, one who does not act for the other person, to explain the agreement and take your acknowledgment.
• Gather information about your property, debts and income so you understand what you are giving up.
• Check that the agreement covers support and property separately and, for a prenup, says it continues after the wedding.
• Keep signed copies of the agreement and your acknowledgment.

If an agreement is already signed and you are unsure it meets the rules, a lawyer can review it against the Act and the facts.

Frequently asked questions