Does an Alberta Separation Agreement Need Notarizing or Legal Advice?

You and your spouse may have agreed on how to split things up, and now there is a document in front of you. Before you sign, it is natural to wonder whether it needs a notary, a witness or a lawyer's involvement to hold up later.

The answer depends on what the agreement covers. Property terms have specific formalities in Alberta, while other topics are treated differently. This article explains the main points in plain language.

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 a separation agreement. The government says you can write one yourselves, but it recommends speaking to a lawyer.

Is notarization required?

For an agreement dealing with property, the formality the Family Property Act names is a lawyer's involvement, not notarization. Notarization is not the stated requirement.

That means getting a stamp from a notary will not, by itself, meet the property rules. Whether a notary or witness is useful for other parts of your agreement is worth confirming with a lawyer.

What makes a property agreement compliant

Unless a compliant written agreement provides otherwise, the date used to value property to be divided is the date of the trial. So an agreement that wants to change the default rules needs to be done properly.

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 sign it freely and without compulsion.

The acknowledgement must be made before a lawyer other than the lawyer acting for the other party. In practice, each of you needs your own lawyer, or at least a lawyer who is not acting for your spouse.

Why independent legal advice matters beyond property

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

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. Those instructions also require the agreement to be attached as an exhibit to the affidavit and certificates of independent legal advice to be filed. Other kinds of divorce filings may have different requirements, so it is worth confirming with a lawyer what applies to yours.

Parenting and support terms are not tested the same way as property terms, and a court can review them. Having advice still helps you understand what you are agreeing to.

How an agreement fits with your other options and deadlines

Alberta's government says there is no such thing as a 'legal separation' in Canada; married spouses or adult interdependent partners are separated when they end the relationship and live apart. Instead, parties can use a separation agreement, Family Law Act court orders (parenting, support, exclusive possession), Family Property Act orders for property, or a divorce under the Divorce Act.

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.

• A property proceeding between spouses on separation may be commenced within 2 years after the date the spouses separated.
• Where there is a divorce, nullity, judicial separation or irreconcilability, it may be commenced not later than 2 years after the date of the decree nisi, declaration or judgment.
• Adult interdependent partners must start a property proceeding not later than 2 years after the date the applicant first knew, or ought to have known, they had become a former adult interdependent partner, not simply from the separation date.
• Alberta guidance says the changes giving adult interdependent partners the same property division rules as married spouses only apply to couples who separate on or after January 1, 2020.

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. Alberta's Family resolution hub and Family Justice Strategy are also government options for resolving parenting, child support or divorce matters outside the courts.

What to do before you sign

• Read the whole agreement and ask what each term means for you.
• Check whether it deals with property, and if so, arrange your own lawyer for the written acknowledgement.
• Do not sign under pressure; the acknowledgement requires that you sign freely and without compulsion.
• Ask for your own signed copy and any certificate of independent legal advice.
• Keep the agreement safe, since in a joint divorce with dependent children the Court of King's Bench instructions require it to be attached as an exhibit to the affidavit.

A lawyer can confirm the exact requirements for your situation before you sign.

Frequently asked questions