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How can I get a cohabitation agreement or prenuptial agreement under the new Family Property Act?

The process for drafting cohabitation agreements in Alberta involves some formalities that must be followed. If the formalities are not followed, the agreement will not be binding. Most important among those formalities is the requirement that both spouses have a signed certificate of independent legal advice attached to the agreement. This requires both spouses to have lawyers at different firms representing them.

The typical process for preparing a cohabitation agreement begins with you talking to your spouse about what you want in the cohabitation agreement. There are a few key topics: 1) how you want to manage your finances during your relationship (eg. will you have joint accounts, will you split household expenses, will you save for vacations together, etc), 2) what your financial goals are, 3) how you each plan to save for retirement, 4) how you will divide property if you separate, and 5) how your plans will change if you have children in the future.

Once you have some ideas, it is time to get the lawyers involved. The first thing the lawyers will do is request financial disclosure about the other spouse. There have been cases where agreements have been set aside because there was not sufficient financial disclosure so this step is extremely important even though it may seem odd between spouses who know and trust eachother.

After financial disclosure is exchanged, the two lawyers will negotiate detailed terms of the agreement based on your instructions and one of the two will draft the agreement. Finally, each spouse will have a meeting with their lawyer to have the agreement explained to them and to sign it. The final meeting may seem redundant after all the negotiation but it is important because it allows the lawyers to meet with their clients privately and confidentially in order to sign a certificate of independent legal advice.

If you have additional questions about how to get your cohabitation agreement started or you are ready to have one made please contact Tyler Fric.

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