Adoption: The New BeginningMay 25, 2009
Independent Legal Advice for Separating CouplesJuly 21, 2009
A decision to live with your partner has important parenting, financial and legal consequences for both of you. Our census data in Canada and Medicine Hat tells us most people live together and then either marry or separate within several years. A small minority of people continue to live together long-term and don’t marry.
If you plan to live together, you can enter into a legally binding, written agreement setting out how you and your partner will treat each other financially and legally during your relationship and how you will treat each other if you separate in the future.
No one ever plans to enter an intimate partner relationship, married or not, and plans for relationship failure. In order to have an Agreement that protects both of you, it is important to first have a conversation about how you want to conduct your affairs during your relationship and how you want to treat each other if your relationship ends. For most couples this requires a courageous conversation as this topic often triggers the desire to be safe and the desire to be vulnerable at the same time.
The Alberta Adult Interdependent Relationships Act (the Act) permits couples intending to live together to enter into a written agreement stating they will be Adult Interdependent Partners with the benefits of Adult Interdependent Partners. These benefits are the right for each Adult Interdependent Partner to claim financial support from the other Partner if they separate and, on the death of either of them, the right to bring a financial claim against the estate of the other Partner. The Act has a required form of Agreement for this situation.
Couples planning to live together can also sign a written agreement stating they choose not to live together as Adult Interdependent Partners, they wish to give up any rights to claim financial support if they separate and they wish to give up the right to bring a financial claim against the estate of the other Partner on death. It is important to get advice from an experienced Family Law lawyer about this kind of agreement to make sure your agreement is legally sufficient and binding.
You can sign a written agreement under the Act, either before or after you begin to live together. At the same time, these agreements are generally more difficult to negotiate after a couple begins to live together.
If a couple chooses to live together without the benefit of a written agreement, the Act states they will automatically become Adult Interdependent Partners in Alberta:
- Three years after they begin living together continuously; or
- If they have a relationship of some permanence (no time limit) and have a child together by birth or adoption.
Once this happens, each Partner has the right to make the claims set out above.
You can also have a written agreement that sets out how you will divide your property and debts if you separate in the future. You and your partner are free to make your own decisions about exactly what you want to do if you separate. It is important to get advice from an experienced Family Law lawyer about this kind of agreement so you can make sure your agreement is legally binding and sufficient.
If you choose to live together and don’t have a written agreement about how you will divide your property and debts on separation, then the Alberta Family Law Act, Law of Property Act and general principles of fairness courts have applied in past cases are used to make decisions about dividing your property and debts. These decisions are very fact specific to each case, so it is a challenge to predict what might happen. If you go to court and ask a judge to make your decision for you, a judge will presume jointly owned property will be divided equally. A judge will divide all other property based on the above Acts, previously decided cases similar to yours, the individual facts of your case and the judge’s opinion.
If you choose to live together and either you or your partner have children, you may make a written agreement about whether either of you will have parenting or financial obligations for your partner’s children, if you separate in the future. However, courts have the obligation and the responsibility to review any agreements affecting children. Our courts also have the power to change any of these agreements if they think your agreement doesn’t meet the best interests of your child(ren). It is very difficult to predict what your family circumstances might be in the future, if you and your partner separate. This means a lawyer may suggest it is not worth negotiating and signing such a parenting agreement. Relationships where one or both of you have children are more complicated and the case law reflects this. If one of you has children, it is wise to get legal advice from an experienced Family Law lawyer about your risks, before you begin to live together.
If you have further questions about how the law might apply to your specific situation, please contact an experienced Family Law lawyer who can provide you with legal advice about your particular situation.