Is a Separation Agreement Legally Binding in Alberta?

You and your partner have agreed on how to split things up, or you are close to it. Now you want to know whether a signed piece of paper will actually hold if one of you changes your mind later.

In Alberta the answer depends heavily on the property terms and on how the agreement was signed. This article walks through what a separation agreement is, what makes the property part reliable, what applies if you have no agreement, and the deadlines to keep in mind.

This article covers the law of Alberta.

What a separation agreement is, and whether you need one

A separation agreement is a contract between people who are separating or divorcing. Common topics are children's living arrangements and parenting time, child support, spousal support and property division.

Alberta does not require you to have one. The government says you can write one yourselves, but it recommends speaking to a lawyer. There is also no status called legal separation in Canada. Instead, people use a separation agreement, Family Law Act court orders, Family Property Act orders for property, or a divorce under the Divorce Act.

What makes the property terms hold up

Property terms carry a specific formality. For an agreement dealing with property to be 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 are signing freely and without compulsion.

That acknowledgement must be made before a lawyer other than the lawyer acting for the other party. This is independent legal advice, usually shown by a certificate or acknowledgement. Notarization is not the stated requirement.

• Each of you meets a lawyer separately, and the two lawyers are different people.
• Each of you signs your own written acknowledgement apart from the other.
• Your acknowledgement confirms you understand the agreement and the property claims you give up.
• Your acknowledgement confirms you are signing freely and without pressure.
• You keep your own copy of the signed agreement and certificate.

Because the exact wording matters, have a lawyer confirm that your agreement and certificates meet the current requirements.

What a compliant agreement can change

A compliant agreement can do two useful things. 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. Also, unless a compliant written agreement provides otherwise, the date for valuing property to be distributed is the date of the trial.

Parenting and support terms are not tested the same way as property terms, and courts can review them. How a court might approach those terms depends on your situation, so it is worth getting advice before relying on them.

If you divorce, or have no agreement

If you are divorcing, the paperwork depends on the kind of application. For example, the Court of King's Bench instructions for a joint divorce with dependent children ask whether a written agreement was made with independent legal advice, require the agreement to be attached as an exhibit to the affidavit, and require certificates of independent legal advice to be filed. Other kinds of divorce applications may have different paperwork, so it is worth confirming with a lawyer what applies to yours.

Alberta's family law mandatory requirements package also says all parties should consider independent legal advice throughout the process, including before any attempt at alternative dispute resolution.

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

Deadlines for property claims

Adult interdependent partners should also know that the changes giving them the same property division rules as married spouses only apply to couples who separate on or after January 1, 2020. Whether a deadline has been met in your case can be tricky, so confirm dates with a lawyer early.

What to do next

• Write down your separation date and any later events, such as a divorce application.
• Gather records of property, debts and accounts.
• Decide which terms you agree on, and which still need discussion.
• Book separate meetings with independent lawyers before anyone signs.
• Keep the signed agreement and both certificates somewhere safe.
• Note your property deadline and do not let it pass while you negotiate.

If you need help reaching agreement without court, Alberta's Family resolution hub and Family Justice Strategy are government options for parenting, child support or divorce matters, and family mediation is also offered.

Frequently asked questions