When spouses separate their key concerns are how to split their assets and to determine who will be responsible for the debts. If an agreement is reached on how to split the matrimonial property, spouses need to ensure that their agreement will be binding and enforceable.
In Alberta, in order for a division of matrimonial property to be binding under The Matrimonial Property Act, a written Agreement is required. Each spouse must have had independent legal advice when signing the written Agreement. Independent legal advice is achieved when each spouse has met with a different lawyer to go over the Agreement and have their legal rights explained to them.
Once each party has been provided with independent legal advice, they must acknowledge the following in writing:
1. That they are aware of the nature and the effect of the Agreement;
2. That they are aware of possible future claims to property that they may have pursuant to The Matrimonial Property Act and that they intend to give up these claims to the extent necessary to give effect to the Agreement; and,
3. That they are executing the Agreement freely and voluntarily without any compulsion on the part of the other spouse or person.
Independent legal advice is important because separation and divorce are large changes in a persons’ life, and both spouses should be aware exactly of what rights and responsibilities they have.
If you have any further questions regarding division of matrimonial property or want help preparing a binding Separation Agreement, please contact one of our family law lawyers at HART Legal in the Calgary office for a free consultation.