Do You Need a Separation Agreement in Alberta? Without One

You have separated, and someone has told you that you need a separation agreement. Or someone has said you do not need anything. Both can sound right, which makes it hard to know where you stand.

This article explains what a separation agreement is, what happens if you do not have one, and what other options exist. It is general information about Alberta law, not advice on your own situation.

This article covers the law of Alberta.

Is a separation agreement required in Alberta?

No. Alberta does not require a separation agreement. The government says you can write one yourselves, but it recommends speaking to a lawyer.

It also helps to know that Canada has no formal status called legal separation. Alberta's government describes married spouses or adult interdependent partners as separated when they end the relationship and live apart. Under the Divorce Act, spouses are deemed to have lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other. If you still share a home, how this applies depends on the facts, and the evidence is a matter for the court. Whether and how separation affects your rights depends on your situation, so it is worth confirming with a lawyer.

What a separation agreement usually covers

A separation agreement is a contract between people who are separating or divorcing. Common topics include:

• Children's living arrangements and parenting time
• Child support
• Spousal support
• Property division

Courts can review the parenting and support parts of an agreement, so do not assume those terms will be enforced exactly as written. A lawyer can explain how this applies to your terms.

What applies if you have no agreement

Without an agreement, married spouses who separate but do not divorce are under the Family Law Act rules. Spouses who divorce are under the federal Divorce Act. Property is then divided under the Family Property Act or by a court.

So the law still gives you a framework. What you lose is the chance to shape the result together. Instead, a court may decide if you cannot agree.

Other routes instead of a legal separation

Instead of a legal separation status, you can use a separation agreement, Family Law Act court orders (such as parenting, support or exclusive possession), Family Property Act orders for property, or a divorce under the Divorce Act.

If you want to resolve things outside court, the Family resolution hub and Family Justice Strategy are government options for parenting, child support or divorce matters. Family mediation and parenting-after-separation programs are also offered. The mandatory requirements package says all parties should consider independent legal advice throughout the process, including before any alternative dispute resolution.

Property agreements and the two-year deadline

Partners can opt out of the default Family Property Act division by drafting their own agreement to divide property differently, and Alberta advises contacting a lawyer about this. For the agreement to count as a compliant written agreement, each party must acknowledge in writing, apart from the other party, that they understand the agreement and the future property claims they give up, and that they sign it freely and without compulsion. That acknowledgement must be made before a lawyer other than the lawyer acting for the other party.

Deadlines are also part of the picture. A property proceeding between spouses on separation may be started within 2 years after the date the spouses separated. Where there is a divorce, the limit is 2 years after the date of the decree nisi, declaration or judgment. Adult interdependent partners must start within 2 years after they first knew, or ought to have known, they had become former adult interdependent partners, and the changes giving them the same property division rules as married spouses only apply to couples who separated on or after January 1, 2020. Because the starting point can differ, it is worth confirming your own dates with a lawyer.

What to do next

• Write down your separation date and the dates of any divorce steps.
• List your property, debts, and any plans for children and support.
• Decide whether you and your former partner can talk about an agreement or try mediation.
• Get independent legal advice before signing anything, especially about property.
• Note your two-year deadlines so you do not miss them.

Frequently asked questions