Enforceability of Agreements

What makes a Cohabitation or Prenuptial Agreement Enforceable?

If you are planning to move in with your partner or get married, you may be considering entering a cohabitation or prenuptial agreement. Both of these are legal contracts that two people enter into that set out how property, support and other matters are to be dealt with after a separation.

You may also enter into a cohabitation/prenuptial agreement, such that it remains in effect during both the period of cohabitation and any future marriage.

1. Disclosure

It is also helpful for both you and your partner to be involved in the process of drafting the agreement, so as to ensure that there was a fair bargaining process. Adequate disclosure helps with this and increases the enforceability of the agreement.

Adequate disclosure is the linchpin of family law. In the case of cohabitation and/or prenuptial agreements, the minimum amount of disclosure that is recommended is each partner’s sworn statement of their income, assets, and liabilities. More fulsome disclosure, including financial statements and other records, is encouraged.

This is necessary because both partners need to know what legal claims they may be surrendering. They cannot sign away their rights without knowing what these rights are.

2. Independent Legal Advice

The Family Property Act, RSA 2000, c F-4.7, requires that agreements dealing with property require Independent Legal Advice (“ILA”). While courts have noted that ILA does not automatically make an agreement enforceable, as was the case in Orcheski v Hynes, 2007 ABQB 194, having ILA assists with dispelling any concerns about pressure, coercion or undue influence. As noted in Anderson v Anderson, 2023 SCC 13 at para 70, ILA “helps to compensate for imbalances or informational deficiencies that may result in an agreement that is substantially unfair to one or both of the parties”.

Both parties should receive ILA to ensure that they know what the agreement entails, how they will be affected, what rights they may be waiving, and the option not to sign.

It is almost always best practice to receive ILA in these situations.

If you are receiving ILA, you should receive this separate from your partner. It is best if your partner is not in the same building as you so that you can speak to your lawyer candidly and freely. Your partner should not be participating in or influencing any of your conversations with your lawyer regarding the agreement.

3. Timing

The timing of when such agreements are signed can significantly impact their enforceability. You should avoid signing a cohabitation and/or prenuptial agreement around a major life event.

For example, if you and your partner are planning to buy a house together, get married, or have children together, you should plan to draft and sign your agreement at least one to two months in advance of the major event. Agreements that are signed a week before a marriage may be considered unenforceable as it may be the case that one party was vulnerable and felt pressured into signing the agreement.

No two relationships are the same, and your needs or requirements for your cohabitation or prenuptial agreement may be different.

At Hayher Lee, we have a team of experienced lawyers who can help you with drafting an enforceable agreement that meets the needs of you and your partner.

Reach out to us for personalized advice and assistance.