Legal Briefs: On online separation agreement
By Kenneth Taylor on September 21, 2019.
ktaylor@pritchardandco.com When you face an unexpected problem where do you turn for advice? Increasingly we as a society turn to the internet – Google, YouTube, Reddit, and so forth – for our first point of contact when we face the unexpected or unfamiliar. Marriage breakdowns are both unexpected and unfamiliar, and increasingly people turn to the internet to answer their marriage and divorce questions. Some take this “self-service” mentality a step further and use online resources – sometimes free and sometimes not – to divide property and even make agreements about parenting. Is that a good idea? Spousal relationships are governed by a number of laws and rules including the Matrimonial Property Act, the Divorce Act, Family Law Act, and Alberta Rules of Court. These laws allow married and un-married spouses to make all kinds of agreements about parenting, property, and support. It is relatively easy to go online and find examples of such agreements. Increasingly people want to use such resources. They can be great tools to save on costs and maintain control, but I must recommend caution. Firstly, if you use an online agreement, it is important to know that it uses the laws of Alberta. This may not be the case if you find an example agreement from a U.S.-based website, or even from a neighboring province. The rules and laws governing marriage and family property are different from province to province, and you need to ensure you use an agreement that is lawful in Alberta. The laws governing agreements also provide rules that agreements must comply with in order to be upheld by a Court. For example, separation agreements are only enforceable under the Matrimonial Property Act if the spouses acknowledge, in writing before a lawyer separate from the other spouse that: (a) They are aware of the nature and effect of the agreement; (b) They are aware of the possible future claims to property they may have under Family Law legislation, and that they intend to give up those claims to the extent necessary to give effect to the agreement; and (c) They are executing the agreement voluntarily without compulsion on the part of the other spouse. These requirements are not simply a formality; they are a necessary part of having an enforceable agreement. Separating spouses also owe each other special duties when they make matrimonial agreements. They are required to act in good faith, make full declaration of all material facts, and conclude agreements under “unimpeachable” circumstances. If care and attention is not taken to ensure all spouses understand, appreciate, and volunteer to agree, a separation agreement may not be worth the paper it is printed on. While spouses are required to act in good faith, they are also required to act in their own self-interest. Separating spouses should be transparent and also take care to ensure they obtain relevant and necessary information to make an informed decision about property, support, or parenting. The Matrimonial Property Act, the Divorce Act, Family Law Act, and Alberta Rules of Court all contain rules to make sure each spouse shares all of the information about what they earn, own, and owe. If one spouse requests information and the other spouse does not provide it (or hides it) there can be grounds to set aside an agreement. On the flip side, if a spouse does not ask for information despite knowing they are entitled to it, he or she may not be able to later complain that they did not receive it. I have yet to see an online agreement that adequately explains either risk, and lawyers can be liable for failing to explain such risks. This column is not to say you cannot find good separation agreements online; you can, and they are getting better day-by-day. However, you should expect there to be more to concluding a separation agreement than merely filling in the blanks. It’s perfectly reasonable to let the internet be your first point of contact when you face the unexpected, but you should exercise caution. You are best served to take your document to a qualified family law practitioner who can help you ask questions and obtain the necessary information to conclude an agreement courts will uphold. Kenneth Taylor helps you navigate the turning points of life. He is an associate with Pritchard & Co. Law Firm LLP. Contact Ken at 403-527-4411 or at ktaylor@pritchardandco.com 15-14
