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​Importance of having Cohabitation and Prenuptial Agreement 

Cohabitation involves two people who shares their lives together but are not married to each other. Cohabitational relationships may involve members of the opposite sex or members of the same sex. 

In Alberta, sections 37 and 38 of the Family Property Act set out the formal requirements for validity of all domestic agreements affecting property, which includes prenuptial agreements. 

cohabitation agreement is a legal agreement that sets out important aspects of the relationship. This type of agreement may include decisions about the conditions when living together and what will happen in the case of a separation. These agreements generally include terms like property rights such as how to divide assets or how bank accounts will be maintained etc.

Under Alberta law, you must be in an Adult Interdependent Relationship to be qualified for cohabitation agreements.  The Adult Interdependent Relationships Act describes what it is an adult interdependent partner, adult interdependent agreement and the validity of this agreement. Family Law Act governs parenting (arrangements for any children) partner support (payment only for adult interdependent partners) and other matters. The Family Property Act (applies only for adult interdependent partners who separated on January 1, 2020, or after this date) regulates division of property and exclusive possession of the family home and household goods. 

What are benefits to creating a cohabitation agreement?

There are different reasons why people live with each other like a marriage or are thinking to live together in the future. For example, there may be a legal impediment to marriage (one of the parties has been previously married but not divorce); there may be religious impediment to marriage, or they may have been involved in a previous marriage breakdown that carries emotional and economic scars and may assume that history cannot repeat itself if they avoid the marriage. If you are thinking to live together with your partner, we know how difficult and emotionally this can be. A cohabitation agreement can be used to help you lower the stress and emotional distress in the event of separation.

Who should have a cohabitation agreement?

Any couple that meets the qualifications of an adult interdependent relationship. It is to the benefit of both in the relationship to have these legal protections.

Who cannot have a cohabitation agreement?

The Adult Interdependent Relationships Act stipulates the following as disqualifying you from entering into a cohabitation agreement: “7 (2) A person may not enter into an adult interdependent partner agreement if the person (a) is a party to an existing adult interdependent partner agreement, (b) is married, or (c) is a minor, unless (i) the minor is at least 16 years of age, and (ii) the minor’s guardians have given their prior written consent”.

Prenuptial agreements are becoming progressively common in Alberta. A prenuptial agreement is a legally binding agreement formed by two people before marriage. The content of this agreement can vary considerably, it is precisely drafted prior to marriage. It can set out the details with regards to division of property or spousal support. Regarding parenting and child support issues, you can negotiate these terms with your partner depending on what is in the best interest of the children at the time. 

Who should have a prenuptial agreement?

Couples who are planning to get married. A prenuptial agreement does not become enforceable until after the marriage has taken place.

Who cannot have a prenuptial agreement? 

Couples who do not meet the validity requirements for marriage. 

Why do you need a prenuptial agreement?

Without a prenuptial agreement, in the event of a divorce or separation, all property would be divided equally between the parties, subject to exceptions and exemptions, according to the Alberta Family Property Act. If you want your property divided in your favor, you will need a prenuptial agreement. Having a prenuptial agreement can help you for unnecessary stress, suffering, and expensive legal fees. These agreements are used to protect your assets (possessions) before you get married. It can also eliminate the possibility of spousal support in case of separation or divorce.

What is the possible consequence of not having a cohabitation agreement or a prenuptial agreement?

When you negotiate a cohabitation or prenuptial agreement, it can be vey distressing. Talk to your lawyer to discuss the ways in which your ex-partner will try to profit from your relationship. There are some circumstances in life that can lead to different behavior, such as addiction, mental illness or distress and can affect a person’s personality. If your own safety is at risk, you need to remove yourself from that situation . Creating these agreements can assist you in escaping a bad relationship or marriage. Partner support may help you to maintain your same financial wellbeing before the breakdown of your relationship. For example, sacrifices you may have made in the relationship such as leaving your studies or career to have children.  

How can we help you? 

When entering a new relationship, it is common for people to have concerns about how to protect their assets. At Shim Law, we can provide legal services including cohabitation and prenuptial agreements. Our experienced family lawyers are committed to serve our clients with care and attention, driven to resolve matters effectively while protecting your legal interests. Please contact Jae Shim for any further inquiries. 

About Jae

Once Jae had finished his J.D. at the University of Saskatchewan, he knew right away to follow his entrepreneur path and to start “Shim Law” in 2014.  Jae has been growing his practices ever since – specifically in the fields of Employment Law and Family Law.

Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 6th ed (Toronto: Irwin Law, 2015) at 38.

Family Property Act – Revised Statutes of Alberta 2000 – Chapter F-4.7

Section 37 provides that the rules for division of property under the Act will not apply where the spouses have entered into a written agreement that complies with the requirements for enforceability. Section 38 provides the formal requirements for agreement.

 Canadian Encyclopedic Digest Family Law: 223. “Two persons who are cohabiting or who intend to cohabit, and are not married, may enter into a cohabitation agreement in which they agree on their respective rights and obligations during cohabitation, or upon the cessation of cohabitation or death, including ownership in or division of property, support obligations, the right to direct the education and moral training of their children, and any other matter in the settlement of their affairs. They may not, however, deal with the right to decision-making responsibility or parenting time with respect to their children”.

Adult Interdependent Relationship Act- Statutes of Alberta, 2002 – Chapter A-4.5.

Adult interdependent partner: 3(1) Subject to subsection (2), a person is the adult interdependent partner of another person if

(a) the person has lived with the other person in a relationship of interdependence (i) for a continuous period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption, or

(b) the person has entered into an adult interdependent partner agreement with the other person under section 7.

(2) Persons who are related to each other by blood or adoption may only become adult interdependent partners of each other by

entering into an adult interdependent partner agreement under section 7.

Adult interdependent partner agreement: 7(1) Subject to subsection (2), “any 2 persons who are living together or intend to live together in a relationship of interdependence may enter into an adult interdependent partner agreement in the form provided for by the regulations”.

Family Law Act – Statutes of Alberta, 2003 – Chapter F-4.5

Interpretation: 1(1) In this Act (c) “adult interdependent relationship” means the relationship between 2 persons who are adult interdependent partners of each other;”

The Matrimonial Property Act (Matrimonial Property Act – RSA 2000, c M-8) is applicable in the case that you separated before January 1, 2020. 

Marriage ceremony requirements: When getting married in Alberta, the following requirements must be met:

– The Alberta marriage licence must be valid on the date of marriage – The Registration of Marriage/Marriage Licence form must be given to the person performing the marriage ceremony before the marriage ceremony starts the ceremony must take place in Alberta -The person performing the marriage ceremony must be authorized by Vital Statistics to perform marriages in Alberta

the couple getting married, and 2 adult witnesses must be physically in the presence of the person performing the marriage

marriage by proxy such as someone standing in place for the person getting married via teleconferencing is not allowed. The witnesses must meet the following requirements: -Be 18 years of age or older – Cannot be cognitively impaired the couple and the witnesses must be fluent in the languages being spoken at the marriage ceremony and fully understand the English forms they have to sign if a person in the wedding party (couple and/or witnesses) are not fluent in English. -An interpreter/translator may be required; talk to your marriage commissioner or clergy person when an interpreter/translator is required. It is the couple’s responsibility to provide one none of the wedding party may be under the influence of a drug or alcohol; this includes being heavily medicated during the ceremony, the Registration of Marriage form must be signed by the couple, the 2 witnesses and the person who performs the marriage ceremony. At the conclusion of the marriage ceremony, the clergy person or marriage commissioner will provide the couple with a Civil or Religious Marriage Ceremony Statement. (httpss://www.alberta.ca/getting-married.aspx )

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About Shim Law

Shim Law is a multicultural law firm that provides legal services to clients in Calgary and around the world. With lawyers fluent in up to 20 languages, we can provide accurate legal representation regardless of language barriers. Our practice areas include family law, real estate law, and more.

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