Domestic Contract in Alberta: Which Marriage Agreements Count?

If you have searched for a domestic contract, you have probably landed on material from another province. The phrase is a handy umbrella label for written agreements between couples, but it is not how Alberta usually organizes the topic.

In Alberta, different kinds of agreements sit under different statutes. This article explains which agreements are recognized, which law each one comes from, and what each can and cannot do.

This article covers the law of Alberta.

Why the label looks different in Alberta

A domestic contract is a general term for a written agreement between people in a couple, such as a prenup, a cohabitation agreement or a separation agreement. When you look for those agreements in Alberta, you find them spread across more than one law, depending on whether the agreement deals with property, spousal support, children or all three.

So the useful question is not whether Alberta has a domestic contract. It is which topic your agreement covers and which statute controls that topic.

The agreement types Alberta recognizes

The Family Property Act applies to married spouses and to adult interdependent partners, so the same property rules cover both kinds of couples. How these rules apply to other kinds of relationships depends on your situation, so it is worth confirming with a lawyer.

What makes a property agreement enforceable

A written agreement that meets section 38 replaces the default division rules for the property it covers. To meet section 38, each party must acknowledge in writing, apart from the other party, that they understand the nature and effect of the agreement, understand their possible future claims and intend to give them up as the agreement provides, and are signing freely and voluntarily.

Each acknowledgment must be made before a lawyer other than the lawyer acting for the other party. This is the Alberta form of independent legal advice for property agreements.

• A prenup must make clear that the parties intend it to apply or continue after the marriage, or it is unenforceable once they marry.
• A postnup does not need that extra statement, because the parties are already spouses.
• An agreement can cover property owned at signing or acquired later.
• Agreements signed before the current provisions took effect are judged by the rules in force when they were made.
• An agreement is unenforceable by a spouse who, when it was made, knew or had reason to believe the marriage was void.

If an agreement does not meet section 38, it does not displace the default rules, and a court can still consider its terms as one factor. For property acquired during the marriage, the default is that the Court distributes it equally unless that would not be just and equitable. Exempt property, such as gifts from third parties, inheritances and property acquired before the marriage, is excluded at its market value, although the Court distributes any increase in value of that property in a just and equitable manner.

Support and children are treated differently

Spouses or adult interdependent partners may agree in writing to pay support or to release each other from it. A court may still depart from the agreement if it is inequitable and a listed circumstance exists, such as the challenging spouse having signed without independent legal advice. A support agreement also cannot vary an existing support order.

If a couple divorces, the Divorce Act lets a court make a spousal support order and requires it to take into account any agreement relating to support. A waiver is weighed against the objectives the Act sets for spousal support.

Children's matters are more limited. A child support agreement does not prevent anyone from applying for a child support order, and an order ends the earlier agreement. On parenting, the court looks only at the best interests of the child, so parents cannot bind the court in advance.

The independent legal advice ground for support agreements and the lawyer-witnessed acknowledgment for property agreements are separate tests, so one does not automatically satisfy the other.

What to do next

• List what you want the agreement to cover: property, support, or both.
• Confirm whether you are married or are adult interdependent partners, since that affects which rules apply.
• Gather information about your property, debts and income.
• Arrange separate lawyers, or at least a lawyer who does not act for your partner, for the section 38 acknowledgment.
• Ask a lawyer whether an older agreement you already have still works under the current rules.

Frequently asked questions