Part 5 of a 6 Part Series

Some areas of family law actually require a lawyer to act by law. In other words, the government has mandated certain things have to be done by a lawyer.

In particular, all marriage contracts dealing with property have to have a lawyer review and sign off on them by virtue of the Matrimonial Property Act. If not, the agreement is void. When it states void, it means void. In my experience a judge will not even look at a marriage contract not signed off by a lawyer.

Marriage contracts include pre-nuptial agreements, agreements signed during marriage and separation/divorce agreements. Any agreement pertaining to property of married persons requires two lawyers, one acting for each party, to be valid.

Agreements entered into by non-married persons are not regulated by the Matrimonial Property Act, but judges have essentially made independent legal advice a requirement for persons entering into a common law cohabitation agreement or common law separation agreement. Any family law agreement that is not signed off by two lawyers is open to attack.

This separation and divorce needs to be dealt with by a family law lawyer. It is very important to get the necessary advice for one of the most disruptive events in a person’s life. I recently heard a news story about how separation can be the most costly and damaging event to a person’s financial well-being and retirement. It can literally destroy the best laid retirement plans. It will always be an event impacting one’s finances and retirement, but with good professional advice there are options to be explored to reduce the impact and to ensure you are protected.

For example, are you entitled to spousal support and how much? If you are the one paying, how much is too much? Spousal support is the one of the most difficult things to advise a client on because it is the great equalizer if you get it correct or the great un-equalizer of you get it wrong. Not getting enough support or paying too much could have devastating effects. The same can be said about having triggers to review support at various point in your life. Lawyers have access very good computer programs to project support and determine the impact of child support and property division. There is no “free” equivalent at the app-store. These programs are expensive and require expertise to run the scenarios. There are various tax issues that impact these calculations and they have become so complicated that we now need a computer to assist with these projections. The judges require them to be done for court. As stated earlier, things do not get any simpler as time passes.

I recently went to the Alberta Court of Appeal over an issue that could have been avoided by a properly drafted separation agreement. The agreement never stated that spousal support was reviewable at retirement. My client wanted to retire. The Alberta Court of Appeal had stated on a prior occasion that if you want something reviewed then you need to clearly specify when and why. Simply stating that you can review on a material change in circumstances is not sufficient because one’s own retirement is foreseeable and should have been anticipated.

The same can be said about entering into a new relationship. The only people who do not “need” a contract at the front end of a relationship are people who are on their first major relationship involving cohabitation, have no assets or children. If you have existing assets, obligations from a prior relationship or obligations to business partners then a contract setting our and managing those obligations is essential. It is not about questioning the new relationship, but about respecting your existing relationships and the new relationship enough to protect them all and avoid them getting into conflict. For example, if you have children from a prior relationship then you must address those obligations no matter how much you love your new partner. The same if you own a business, your business associates do not want to have your life partner as their business partner, they want you. You owe these people legal obligations and the failure to address these obligations puts the most important people in your life in competition and conflict over your assets and income. This is a recipe for disaster.

As with the other five areas discussed, I find it hard to believe that people may want to use a non-lawyer to save a few dollars during one of the most critical events of their life. A major life event such as a marriage, cohabitation or separation is not something to save a few bucks on by using a non-lawyer or just taking your chances. The resulting costs to resolve the dispute will far outweigh any potential saving.

By Darryl Aarbo of Aarbo Fuldauer LLP

For more information, please contact the law office of Aarbo Fuldauer LLP at:

Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Email: [email protected]

Darryl Aarbo
Barrister & Solicitor
www.aflawyers.ca

*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*