Coming to an Agreement on Your Own

Law

You can reach your own agreement to solve your family law matters. You do not have to go to court. See the sections below to learn about:

  • Whether a separation agreement is right for your situation
  • Considerations if there has been family violence
  • How to make a separation agreement, and the basics about contract law
  • Getting independent legal advice
  • Turning your agreement into a court order
  • Enforcing your agreement
  • Changing your agreement

Choose the Process tab above for detailed information about the steps involved when making an agreement.

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: August 2017
Who is this Information Page for?

This Information Page is about coming to an agreement on your own for people trying to resolve family-related legal issues. This is sometimes called the “kitchen table” option—the idea is that the people involved sit around their kitchen table and resolve the issues on their own. The more formal legal term is “party-to-party resolution.”

Almost any legal issue can be agreed upon by the parties involved. For example, you can agree about:

  • The terms of your separation
  • Dealing with a piece of property
  • Having contact rights to your grandchild
  • Settling an estate

Therefore, the “things to know” for your agreement will be different depending on the legal issue you face. However, it is always important to learn the law that deals with the topic of your agreement. This is because, if the people involved did not understand their rights, any agreement they signed can be set aside by a court.

You are currently on the Law tab of this Information Page, which has general information about coming to an agreement out of court. For information on the process of making an agreement, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

party

Any person involved in a dispute. It can also refer to each of the people who sign a contract.

third party

In court processes, this term refers to someone who is not directly involved in a legal disagreement, but who is affected by the results of the dispute. For example: in family law cases, the bank who gave the mortgage on the family home is a “third party.” However, on this website we also use the term “third party” to refer to people who are not directly involved in a legal disagreement but are connected to it in some other way. For example: two people who are separating might hire a mediator to help them resolve their issues—that mediator will be called a “third party.”

independent legal advice

Guidance from a lawyer about a contract a person wants to sign before he or she signs the contract. The lawyer makes sure that the person understands the law and legal consequences of the contract, including the person’s rights and responsibilities. In order for the advice to be “independent,” both you and the other party must have your own lawyer. You cannot both go to the same law firm.

negotiation

Any process where there is a “discussion” to resolve a disagreement or conflict, and the people involved try to come to an agreement. This is different from simply “presenting sides” and having someone else make a decision for you.

contract

A formal agreement by two or more people (or groups) to do something, or to not do something. The agreement can be enforced by law if it meets the legal requirements of a contract.

domestic contract

A legal agreement between 2 or more people who are either:

  • living together (whether married or not);
  • will soon be living together (whether married or not); or
  • were living together (whether married or not) and are now ending their relationship.

A domestic contract allows the parties (romantic or non-romantic) to create their own terms for their relationship. This may include rights and responsibilities they have toward one another during the relationship, as well as after the relationship ends. Or, if they are ending the relationship, it allows them to decide for themselves how to resolve the issues between them. Some examples of domestic contracts are cohabitation agreements, pre-nuptial agreements, marriage agreements, and separation agreements.

binding (to bind)

Creating an obligation or duty that cannot be broken or changed. For example: if people make a “binding” agreement, it means that the parties must follow the terms of the agreement.

Be Aware

Only those who have signed the binding agreement must follow it. The agreement does not bind anyone else.

take effect

To start to apply. For example: a contract can be signed on March 15, but the terms of the contract may not start to apply until April 1. In this case, the contract “takes effect” on April 1.

clause

The term “clause” usually means a sentence or phrase in a written agreement or court order that has some particular meaning or function.

For example, a “severability clause” in an agreement is a sentence that says everything in the agreement is separate from one another. This means that if a part of the agreement is not enforceable under the law, it will not affect the rest of the agreement. So every time someone uses the term “severability clause,” it means a sentence that has this particular function (although the wording of the clause may be different in each agreement or order).

“set aside” an agreement

When a court “sets aside” an agreement, it believes that making one of the parties carry out his or her “end of the deal” would not be right. Another way of saying “setting aside” is “striking down.”

An agreement can be set aside for many reasons, such as:

  • one party was pressured, forced, or tricked into signing the agreement (this may also be called “undue influence”);
  • one party did not have the “capacity” to enter into the agreement (that is, they did not have the legal ability to understand the agreement);
  • the parties involved in the agreement did not give each other full and accurate information (that is, they did not provide each other with complete “disclosure”); or
  • any of the parties did not understand what they were signing.

By setting an agreement aside, a court is basically cancelling it. A court can set aside:

  • the whole agreement;
  • just a particular part; or
  • several parts of the agreement.

financial disclosure

The process of giving your financial information to someone else. This information usually includes such things as:

  • tax returns
  • income information (such as pay stubs)
  • a list of property you own (including the current value)
  • statements about investments you have (including the current value)

Depending on the situation, it may include much more information.

When separating or divorcing, parties give each other this information so that fair solutions can be reached. If you are going to court about child support, spousal/partner support, or division of property, this information will be required by the court.

capacity

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are two parts to mental capacity:

  1. the ability to understand the nature of a decision (including understanding all of the information that is relevant to a particular decision); and
  2. the ability to understand the consequences of making a decision (that is, a person with capacity would understand what could happen as a result of making a certain decision).

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor's opinion or a judge’s decision).

consent

To give permission for something to happen, or to agree to do something. Only people with capacity can consent.

duress

When one person directly or indirectly threatens another person in order to make that person act in a certain way. If a judge finds that a party was under duress when a domestic contract was made, the contract can be set aside.

“best interests of the child”

The factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child.

For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • the child’s opinion (if the child is mature enough to form an opinion).

“contract out of”

Agreeing in a contract to not be included in something.

For example: the law often sets “standard” rights and responsibilities. The terms of a contract can sometimes change some of these rights and responsibilities. In other words, you can contract out of those rights and responsibilities.

Be Aware

 

enforcement

Forcing something to be done or forcing someone to act in a specific way because of a law, rule, or court order.

Is an agreement right for you?

Coming to an agreement on your own is often viewed as a better option than going to court. Depending on your situation, it certainly can be. Going to court can be expensive, time-consuming, and emotional. It can also increase conflict, because court processes often make the parties feel like there are “winners” and “losers.” An increase in conflict can be particularly damaging if the parties must continue to be in contact in the future. For example: when they still have to raise children together.

That said, this option might not work for everyone. In some situations, trying to come to agreement on your own may not be possible. Sometimes, it may not be safe. For example: where there is a power imbalance emotionally or financially. Or, where there has been domestic violence.

If you are unsure whether coming to an agreement on your own is a good option for you, you can always ask a lawyer for advice. For more information about your options for legal help, see the Community Legal Resources & Legal Aid and Working with a Lawyer Information Pages.

Also keep in mind that coming to an agreement on your own is not the only way of staying out of court. There are various ways of resolving legal problems without going to court. These are called “alternative dispute resolution” (ADR). For more information about ADR options, see the Alternative Dispute Resolution Information Page.

Tip

Coming to an agreement can be tried more than once. In the beginning, you might still be too emotional to be able to agree on anything. Or perhaps you can only agree on temporary arrangements as you figure out what the longer-term solutions will be. That is normal. Sometimes, people need to go to court one time to find out for themselves what that is really like. This can often convince the parties to come to an agreement out of court. Sometimes, the parties can come to an agreement on many issues, but not all. That can be helpful as it leaves fewer issues to be settled in another way (ADR or going to court). But remember, for some, coming to an agreement may never be an option, and that is okay too.

If there has been family violence

Has there been any domestic abuse in the family—whether it was toward you, the children, or both? It is very important to recognize and admit this, both to yourself and to any organizations you approach for help. Everyone involved must be kept safe.

Also, family violence is often a critical factor in what happens in family law matters.

If you are the victim of domestic violence, there are a few places to start.

  • Be honest and upfront about it. Violence does not go away on its own. See the What is Family Violence? Information Page for more information.
  • Know that it is never your fault, or the fault of the child. The responsibility belongs only to the abuser.
  • There is no single right way to proceed—it will depend on the exact details of your case. Sometimes, mediation and other collaborative processes may not be possible. On the other hand, sometimes going to court may not be the best option. Learn about Family Violence and the Legal Process.
  • There are criminal laws and protective laws that might be able to help.
  • Abusive situations are complicated. Consider talking to a lawyer (or another person who is helping you with your legal issues) about the best way to proceed. For more information, see the Family Violence: Resources to Help and Working with a Lawyer Information Pages.
Coming to an agreement on your own does not mean avoiding the law

Trying to solve family law legal issues by coming to an agreement on your own can be a very good choice in many cases. However, keep in mind that you will still need to know about the law.

Knowing the law leads to more successful agreements

Sometimes, people think (or are told) that learning about their legal rights and options is a bad thing. They believe that this might lead them to fight and “go to court” one day. This is not true.
Any agreement will have more of a chance of success if everyone involved:

  • knows their rights and options; and
  • makes all of their choices with these rights and options in mind.

In fact, big problems can arise when people only find out afterward what their rights and options were. They may feel resentful and try to “undo” what was agreed upon. It may also cause further breakdown of what is left of the relationship. This can lead to more difficulties if the parties still have to work with each other. For example: if they still have children to raise.

You cannot agree to something that is against the law

You will want your agreement to “hold up” in court. It will not be legally binding if you agree to something that is against the law.

For example:

  • A court can refuse to grant a divorce if there have not been proper child support arrangements made.
  • If an agreement deals with the division of matrimonial property, a court will not turn your agreement into an order unless the parties have had independent legal advice.

Agreeing out of court means you are responsible for understanding the law

Family law can be complicated and scary. You may not want to learn about, or deal with, the legal part of your family matters. You may have been hoping that it is not necessary when making an agreement on your own.

However, it is your responsibility to know the law. You must make sure that your agreement follows the law, because there is no lawyer to do it for you.

In fact, if you did not understand your rights and responsibilities, any agreement that you came to can be overturned by a court. Also, if you did not get independent legal advice before signing the agreement, a court may decide that you did not truly understand the contract when you signed it. As a result, the court may “set aside” the agreement.

Agreements about children must be in the “best interests of the child”

One rule guides all arrangements made for children. Any decision regarding children must be made in their best interests. Therefore, when dealing with issues about children, a court can always have the final say. It does not matter what the parties involved have agreed upon. The Court can change the arrangement if it believes that the arrangement is not in the best interests of the children.

This power of the court comes from a legal concept called the “parens patriae” jurisdiction. This Latin term means “parent of the nation.” It refers to the power of the court to:

  • step between a parent/guardian and their child; and
  • act as the parent of any child in need of aid or protection.
Before you start: Learn the law

Before trying to come to an agreement on your own, you will want to educate yourself about the process and the goals. As part of that, you will need to learn about the law that relates to your particular family law issue. Be aware that this will take some time—law is not easy. Do not try to do it all in one sitting.

Tip

Because part of coming to an agreement involves “negotiating,” you may also want to review the approaches to negotiation (especially “interest-based negotiation”) on the Alternative Dispute Resolution Information Page.

Separation or divorce

If your family law issue involves a separation or divorce, there may be many legal topics to learn about, including: parenting time, child support, partner/spousal support, and property division. These topics are talked about in many different laws.

For parenting and support issues, there are 2 different laws that could govern the issues involved in the breakdown of your relationship. You need to know which law applies to you.

  • Married couples have a choice which law they use when they separate. They can use Canada’s Divorce Act, or Alberta’s Family Law Act. The choice of which law to use is extremely important. For information about choosing which law to use, see the Ending a Married Relationship Information Page.
  • Non-married couples do not have a choice. The law that applies to couples who were not in a married relationship is Alberta’s Family Law Act. If you were not married, Canada’s Divorce Act and Alberta’s Matrimonial Property Act do not apply to you.

On this Information Page, you may be directed to other parts of this website that will discuss a specific topic in more detail. This may include 2 Information Pages appear to deal with the same issue. For example: “Child Support under the Divorce Act” and “Child Support under the Family Law Act.” These are not the same things—they refer to the different laws that can deal with the issue.

If you are not sure if you were married or not, see the Getting Married Information Page.

For information about the laws related to separating and divorcing, see the following Information Pages:

For information about the laws related to the care of the children, see the following Information Pages:

For information about the laws related to child support, see the following Information Pages:

For information about the laws related to partner/spousal support, see the following Information Pages:

For information about the laws related to the division of property, see the following Information Pages:

Other topics

You may be trying to reach an agreement about a family issue that does not involve the breakdown of your relationship. For example, you may be trying to agree about contact with a grandchild, or the division of an estate.

For a complete list of other Information Pages about family legal issues, you can browse the Family Law Topics or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Before you start: Contract law basics

To make an agreement (also called a “contract”) that is legally sound, there are some very important things that you must know. The rest of this section has information about:

  • What is a contract?
  • Void and voidable contracts
  • Things you must always have in your agreement
  • Things that are always a good idea to have in your agreement
  • Things you cannot ever have in your agreement

See the following resources for an overview of these issues. Note that these resources are from outside Alberta. Learn more here.


Web Basic Rules of Contracts
Éducaloi
English

Web Making a Contract
Clicklaw
English

Web Making a Contract
People's Law School
English

Web How to Write a Legal Contract
People's Law School
English

What is a contract?

A contract is an agreement between 2 or more people that can be enforced by the courts. The people who take part in this agreement are called “parties.” A contract is different from a casual agreement or promise. With a contract, if one party does not hold up “their end of the deal,” they can be sued by the other party in court. As long as a contract is valid, the parties have legal protection. See the rest of this section for more information about what makes a contract “valid.”

The purpose of having a contract is to settle the parties’ rights and obligations in a certain way. Then the parties don’t have to worry about what might happen in the future. Once a valid contract has been created, it cannot be changed unless all the parties to the contract agree to the change.

For more information, see the following resource.

Presentation Canadian Law: Elements of a Contract
Northlands Parkway Collegiate
English

Void and voidable contracts

A contract can be “void” or “voidable” if:

  • it does not have all the necessary legal requirements, or
  • the process of creating the contract was unfair or has some other flaws.

A void contract is a contract that was never legal, such as a contract to do an impossible or illegal act. Because the contract was never legal, it “never existed” under the law. If a contract is void, you will not be able to enforce it in court.

A voidable contract, on the other hand, is a contract with a legal flaw. However, the contract is still recognized as a valid contract until:

  • someone brings that flaw to the attention of a court; and
  • the court decides that the contract was not valid after all. This decision makes it a void contract.

The main difference between a void contract and a voidable contract is whether it can be used at all.

  • A void contract cannot be carried out under the law.
  • A voidable contract can be carried out unless one of the parties disputes the contract.

For example:

  • A contract that was signed by an adult with a severe head injury who has lost the capacity to make his or her own decisions is void.
  • A contract that was signed by a 17-year old a few days before his or her 18th birthday is voidable.

To see examples about legal flaws that can make a contract void or voidable, see the following resource and the rest of this section.

Web What Are the Differences Between a Void Contract and a Voidable Contract?
LegalMatch
English
This resource is from a private source outside Alberta. Learn more here.

Things you must always have in your agreement

For any kind of agreement to be legally sound, there are several things that are required. They include the following.

Capacity

“Capacity” means the parties who make the agreement must have the legal authority to make decisions for themselves.

This means that a person signing an agreement must understand both:

  • what they are agreeing to (everything in it!); and
  • what could happen if they do or do not sign the agreement.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

When making an agreement, you need to be sure that all the parties involved have capacity both:

  • while making the decisions; and
  • when they sign the agreement.

A person under the age of 18 (a “minor”) is generally presumed to not have capacity to enter into contracts. Any contract that is not in a minor’s best interest is void. Contracts that are not harmful to a minor are voidable unless:

  • the contract was for the “necessaries of life” (for example: food and shelter); or
  • the minor has already benefitted from the contract.

Therefore, if a minor enters into an agreement, that agreement will generally be voidable. This is true even if both parties carried out the contract and treated it as valid.

An agreement made by an adult without capacity would be void. However, there could be disagreement about the capacity of the adult. Then, a court may have to hear the evidence of incapacity and make a decision about whether to set aside the contract.

Consent

Entering into an agreement is a voluntary thing. No one should ever be forced or tricked into signing a contract. If it is shown that a person did not properly consent to the agreement, a court can cancel the agreement (this is also called “setting aside” the agreement).

Capacity

Entering into an agreement must be voluntary. No one should ever be forced or tricked into signing a contract. If it is shown that a person did not properly consent to the agreement, a court can cancel the agreement. This is also called “setting aside” the agreement.

Legally, a person under the age of 18 (a “minor”) cannot give consent. This means that if a minor agrees to something, you may not be able to “hold” them to it. This is why a contract entered into by a minor is voidable. See the “Void and voidable contracts” heading above.

Complete disclosure

“Complete disclosure” means that all parties involved in the agreement must give each other full and accurate information. This includes financial information. Each of you needs to know all of the information to decide whether a deal is fair. This is the purpose of complete disclosure.

The parties cannot lie about the facts on which the agreement is based. Lying includes leaving out (omitting) important information. Fair and lasting agreements are based on being honest. If it is later shown that someone lied, or one party misled the other about relevant information, the agreement can be set aside. A full and thorough disclosure is the best way to prevent your cohabitation agreement from being set aside.

For more information about disclosure, see the following resources.

Web Financial Disclosure Obligations During Separation
Kirk Montoute LLP
English
This is a private source. Learn more here.

PDF Financial Disclosure Required in Alberta
Island Family Lawyers
English
This is a private source. Learn more here.

Web Financial Disclosure in Separation Agreements
Peterson Stark Scott
English
This resource is from a private source outside Alberta. Learn more here.

Web Ten Years Later, Court Overturns Agreement Due to Husband’s Non-Disclosure
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

 

Following the law that governs the issue

Sometimes, people want to use a contract to get out of what the law says. This is called “contracting out” of the law. In general, that is not how the law works.

In most cases, you cannot just “agree” to not follow the law. This is because most of the time, the law states what must always be the case.

A few examples:

  • The law states that when parents separate, their children are entitled to support. It also sets out rules for how the amount of support will be calculated. You cannot agree to never pay child support.
  • For agreements that deal with the division of matrimonial property, the parties are required to get independent legal advice. You cannot “agree” to not get this advice.
  • To adopt a child, there must be a court order allowing the adoption. You cannot simply agree to finalize the adoption out of court.
  • When planning for illness, there are rules about what things a decision-maker can decide about, and what the decision-maker cannot decide about. You and your future decision-maker cannot simply agree to make decisions about topics that are not allowed.

However, sometimes, laws only state what the “default” is. In other words, they say what would happen if there were no agreement that said otherwise. In these cases, the parties can “agree otherwise” or “contract out” of the default position. This is not as common.

For example: The law states that when a couple divorces, the property they acquired together should be split 50/50—unless there is a good reason not to. This “good reason” could be the couple making an agreement that said otherwise. As a result, when you make an agreement, you do not necessarily have to equally split the property you acquired together.

Therefore, you must know what laws govern your issues.

Tip

Many of the Information Pages on LegalAve have a section called “The laws that may apply to you.” If you are not sure what laws govern your legal issues, that is a good place to start. To find Information Pages about your issue, you can browse the Family Law Topics or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Things that are always a good idea to have in any agreement

The following things do not have to be part of most agreements. But, having them might make it easier to enforce your agreement in the future.

Independent legal advice

This means that you consult with a lawyer about a contract you want to sign before signing the contract. The lawyer makes sure that you understand:

  • the law that applies to the contract;
  • your rights and responsibilities under the contract; and
  • possible legal consequences of the contract. In other words, what could happen as a result of signing the contract.

For the advice to be “independent,” both you and the other party must have your own lawyer. You cannot both go to the same law firm.

Without getting independent legal advice, the parties may not truly understand the contract when they sign it. As a result, a court may decide to “set aside” the agreement.

Be Aware

For agreements that deal with matrimonial property, independent legal advice is required.

For more information, see the “Getting independent legal advice” section below.

A written agreement

In theory, a verbal contract can be legally enforceable. However, it is always better to put any agreements in writing, whether typed or handwritten. This is because, when the agreement is not in writing, it can be impossible to prove exactly what was agreed to. The other party can just say, “I didn’t say that.”

Also, with a verbal agreement, both you and the other party may have different understandings of what the verbal agreement means. The other party can just say, “That’s not what I meant.” If the agreement is written down clearly, it can prevent misunderstandings in the future.

Witnesses

It is a good idea to each have a witness to your signature when you sign your agreement. Your witness watches you sign the agreement, and then they sign the agreement to “prove” that they watched you sign. In the future, someone may question whether you freely consented to the agreement. Having a witness who watched you sign the agreement may help your case.

The witnesses do not have to read the agreement. In Alberta, a witness can be anyone who is over the age of 18 and who does not stand to benefit from the agreement.

Clarity

Make sure it is very clear what you are agreeing to. You don’t want to argue later about what you really meant. Also, there is no need for complicated legal phrasing. Plain, clear language works best. You may want to have a friend read the document to see if they can understand it without any help from you.

Things you cannot ever have in your agreement

To make sure that your agreement is legally sound, there are several things that must never be present. They include the following.

Undue influence

“Undue influence” takes place when one person has power over another person, and uses that power to benefit themselves in the agreement. Undue influence affects the free will and judgment of another person, and may include:

  • advice;
  • persuasion;
  • suggestions;
  • flattery; and
  • deception.

If a judge finds that there was undue influence when the agreement was made, the agreement can be set aside.

Duress

“Duress” means that one person directly or indirectly threatened the other.

A direct threat is usually very clear. For example: “Sign this or I will make you pay” or a hand gesture that shows throat-cutting.

An indirect threat is less clear, and may only be understood as a threat by the people involved. For example: “Have a safe ride home.” Such a statement does not, on its own, look very threatening. However, it could be threatening in some circumstances. Maybe the person who is speaking had previously threatened to disable part of the other person’s car. Or, maybe statement was combined with a threatening expression or eye contact that only the person involved would see.

If a judge finds that a party was under duress when the agreement was made, the agreement can be set aside.

For more information, see the following resources.

Web What are domestic contracts?
Luke's Place
English
This resource is from outside Alberta. Learn more here.

PDF Fiche d'information sur les contrats familiaux
Luke's Place
French
This resource is from outside Alberta. Learn more here.

Web Was Your Marriage Contract Signed “Under Duress”?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Terms that are against the law or against “public policy”

You cannot agree to anything that is against the law or against “public policy.”

Something that is against the law is easy to understand. For example: a court will not uphold an agreement that says that no child support would be paid by either party. This is because the law requires parents to support their children. Also, child support is the right of the child, not the parents.

Something is that is against public policy is different. It may not actually “break” any laws, but it does not follow the spirit and purpose of the law. Or it may not fit with the general social and moral values of our society.

Clauses that are against public policy may be set aside. For example, you might try to set a condition on paying partner support. The condition says that that your partner can not enter into another romantic relationship for 15 years following your separation. This condition would be struck down in court as against “public policy.” This can apply to any situation where one party holds the other party “hostage” with a condition that is not generally acceptable in our society.

Things to include in an agreement

When you are completing your agreement, make sure that you include all of the issues you want addressed. Otherwise you may have more to work out later, and you may have to go to court over the issues.

The exact topics you include in your agreement will depend on many things, including:

  • what the law requires;
  • what the law “suggests” (see the “Before you start: Contract law basics” section above);
  • the parties’ needs and goals; and
  • what the parties expect they will need in the future.

If you are separating or divorcing, topics for consideration include:

  • the living arrangements and care of children;
  • child support;
  • spousal/partner support; and
  • division of property.

Each of these topics can be rather complicated, and it is important to carefully think about each of them. For example: child care arrangements, child support, and property issues can all have large tax consequences. You should make sure you know about them before finalizing any agreement. To find Information Pages about your issue, you can browse the Family Law Topics or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

To avoid problems later, you will also want to be aware of important details that some people think of as “legal technicalities.” Here are some of the most important “legal technicalities” you may want to include in your agreement:

  • The exact names of all of the parties, and the names and birth dates of all the children involved, if there are any.
  • The date the agreement takes effect: agreements are binding from the moment they are signed by all parties, unless the agreement says something different.
  • Recitals: these are sometimes called “whereas” clauses. They give a clear statement about what the contract is intended to govern, as well as some background information. For example: “This agreement is intended to govern property division upon separation.
  • Mutual releases, if you decide you want them. This is where the parties limit each other's claims against each other to what is included in this agreement. In other words, they cannot later ask for more than what was agreed to in the agreement.
  • Acknowledgements”: this is where the parties state that they met the legal requirements. For example: Each party read and fully understands the agreement. Each party is voluntarily signing the agreement. Each party has received independent legal advice. Or, if legal advice is not required for the agreement, each party knows that they can get legal advice but is choosing not to get such advice.
  • A “law that governs” clause: a “law that governs” clause will lay out which province’s or country’s laws will be used to decide any future issues that might come up. This can be important if one of the parties lives in, or will move to, another province or country.
  • A severability clause: this clause states that each term of a contract is independent from the other terms of the contract. This way, if part of a contract is struck down in court, the rest of the contract would still be valid.
Tip

Do not agree to something vague or agree to “discuss later.” For example: “We agree to divide the furniture fairly.” This can lead to more conflict in the future. Be specific and be complete.

For more general information about topics to include in your agreement, see the Process tab of this Information Page.

Getting independent legal advice

A court can set aside an agreement if it believes that one party did not fully understand the agreement. One of the ways to make sure you understand an agreement is by getting “independent legal advice.” This means that you consult with a lawyer about a contract you want to sign before signing the contract. The lawyer makes sure that you understand:

  • the law that applies to the contract;
  • your rights and responsibilities under the contract; and
  • possible legal consequences of the contract. In other words, what could happen as a result of signing the contract.

There are other possible benefits of getting legal advice. A lawyer can:

  • help you consider whether you should enter into an agreement at all;
  • tell you what options you might have if you don’t sign the agreement;
  • catch any topics or issues that you may have missed or hadn’t thought about; and
  • make sure that the terms or conditions in your agreement are clear.

For the advice to be “independent,” both you and the other party must have your own
lawyer. You cannot both go to the same law firm.

Independent legal advice is only required for agreements about property division for married spouses. However, you may wish to get independent legal advice whenever you enter into any type of family law agreement. If either of you does not get independent legal advice before signing the agreement, a court may take this as evidence that the party did not truly understand it. As a result, the Court may set aside the agreement.

The lawyer who gives legal advice will sign a Certificate of Independent Legal Advice. This certificate confirms that you:

  • understood the agreement;
  • received advice about how the agreement affects your legal rights and interests; and
  • chose to enter into the agreement on your own free will, without being pressured into it. There should be a specific clause in the certificate to say that the lawyer confirms this.
Tip

Even if the other party does not want independent legal advice, you may want to insist that they get independent legal advice to protect you. This is because doing so will make it more likely that the agreement is enforceable.

You can also have your lawyer(s) write the agreement, to make sure that it is legally sound. Or, if you decide to write it yourself, you could consult a lawyer at any time in the process. For more information, see the Working with a Lawyer Information Page.

If your agreement deals with dividing up matrimonial property, you will have to see a lawyer: the Matrimonial Property Act requires that you get independent legal advice. This includes signing the agreement in front of your lawyer. If you do not go to a lawyer, your agreement about the property will not be binding. The other party could ask the Court to ignore the agreement when dividing up the property.

Be Aware

Getting independent legal advice for a property agreement is a very detailed process. The lawyers have a duty to be sure that the parties have told each other about all of the property and understand all of their rights. Therefore, the lawyer cannot simply believe what they are told. The lawyer will have to see the documents that prove what property exists, what property is shareable, and what property is not shareable. If the lawyer has not seen all of these documents, they have not fulfilled their duty.

For more information about getting independent legal advice for a separation agreement, see the following resource.

Web Why you need independent legal advice for a separation agreement
Patriot Law Group
English
This is a private source. Learn more here.
Be Aware

Staff at the courthouse or Resolution and Court Administration Services can help with many matters related to your separation. However, they cannot provide legal advice, or help you write your separation agreement.

If you are 19 years old or younger, the Children’s Legal and Educational Resource Centre may provide free independent legal advice and representation. For more information, see the following resource.

Web About CLERC
Children's Legal & Educational Resource Centre
English

For more information about getting independent legal advice and why it can be very important, see the following resources.

Web All About Independent Legal Advice (Family Law ILA)
Kahane Law Office
English
This is a private source. Learn more here.

Video Certificate of Independent Legal Advice
Kahane Law Office
English
This is a private source. Learn more here.

Video Independent Legal Advice and Separation Agreements
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

Video Demandez à un expert - Vidéo 1
Family Law NB
French
This resource is from outside Alberta. Learn more here.

Web Why do I need a lawyer for my divorce?
Barriston Law LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web ILA: Independent legal advice and how it works
Sullivan Law
English
This resource is from a private source outside Alberta. Learn more here.
Finalizing the agreement

There are steps to finalizing an agreement to make sure it is legally enforceable. For information about these steps, see the “Finalizing the agreement” section on the Process tab of this Information Page.

Turning your agreement into a court order

 

Once you have an agreement, it applies to everything as you move forward. Sometimes, you may need to show other people what the agreement said. For example: You may agree to divide a pension immediately. You will need to show the pension administrator what you agreed to, so that the pension payout can be calculated.

However, some of these people may not accept copies of agreements (even if there was independent legal advice). They may require a court order. To continue with the above example: some pension administrators will not complete a payout without a court order that shows exactly what was agreed upon.

To deal with this issue, the parties who made the agreement may want to have the agreement turned into a court order. When all of the parties agree, you can turn your agreement into a “consent order.”

Turning your agreement into a consent order can also save you time later if there is a problem with one party not following the agreement. See the “Enforcing the agreement” section below for more information about that.

For information about turning your agreement into a consent order, see the “Consent orders” section of the Information Pages that deal with your family law issues. A list of these Information Pages can be found on the Family Law Topics page. More general information about consent orders is also on the Understanding the Court System & Processes Information Page.

Enforcing the agreement

Having an agreement does not mean that the other party will necessarily follow that agreement. Nor does it mean that you will be able to do anything about it if they do not follow the agreement. For that reason, once you have an agreement you may wish to turn it into a consent order. For more information, see the “Turning your agreement into a court order” section above. Having a court order is always the first step to enforcement.

Enforcement” means making the other party follow what they have agreed to or were ordered to do. If you have a court order, and the other party does not do as they are supposed to, you will be better prepared to take steps to enforce what you agreed to. For example, you will be able to take the issue to court more quickly.

Tip

Support orders can be registered with the Maintenance Enforcement Program, which will enforce the Order for you for free.

For information about enforcement, see the Information Pages that deal with your family law issues. A list of these Information Pages can be found on the Family Law Topics page. More general information can also be found on the Understanding the Court System & Processes Information Page.

Be Aware

It’s never too late to ask for a court order. You can always ask the court to order the other party to follow your agreement.

Changing the agreement

Sometimes, you might need to change (or “amend”) your agreement.

If all of the people who signed the agreement agree to the changes, you can simply make a new agreement. It can include all of the changes you want to make. This is sometimes called an “amending agreement.” It is made in the same way, and with the same rules and considerations as the original agreement. If the original agreement was filed in court as a consent order, the amended agreement can be turned into a court order as well.

If you cannot agree about changing the agreement, you could try using one or more types of alternative dispute resolution (ADR) to work things out. Or, you could take the matter to court.

For more information about changing an agreement, see the following resources.

Web Can Ex-Spouses Change a Separation Agreement?
Peterson Stark Scott
English
This resource is from a private source outside Alberta. Learn more here.

Web If Spouses Reach a Separation Agreement But Later Reconcile, Is the Agreement Still Good?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Web Cancelling or Breaking a Contract
People's Law School
English
This resource is outside Alberta. Learn more here.

For more information about your ADR options, see the Alternative Dispute Resolution Information Page.

Process

Learn more about how to make a family law agreement, including:

  • Topics to include in your agreement
  • Negotiating the terms of the agreement
  • Using a lawyer to write your agreement or doing it yourself
  • Turning your agreement into a court order
  • Enforcing the agreement and making changes to the agreement

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: August 2017
Who is this Information Page for?

This Information Page is about coming to an agreement on your own for people trying to resolve family-related legal issues. This is sometimes called the “kitchen table” option—the idea is that the people involved sit around their kitchen table and resolve the issues on their own. The more formal legal term is “party-to-party resolution.”

Each family is unique. As such, there is no one specific process to follow when coming to your own agreement to solve your family law issues. However, below you will find some broad guidelines as to what a “typical process” in coming to your own agreement might look like.

Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand better what to ask for and how to get it. Once you have the basics down, you will be in a better position to learn about the process you need to follow to resolve your legal issues.

You are currently on the Process tab of this Information Page, which has information about processes involved in coming to your own agreement. There is also important information in the Common Questions, Myths, and Law tabs above. Please see the Law tab of this Information Page for general information about coming to an agreement on your own. In particular, if you have not already done so, you may want to review the “What the words mean section of the Law tab.

Be prepared and have patience

Coming to an agreement takes effort and time. This makes sense: it is an important subject, there are probably a lot of emotions involved, and the decisions you make now can affect you for years to come. This is especially true if there are children involved, as you and the other party will still have to interact with each other for quite some time.

However, the exact amount of time and difficulty involved in coming to an agreement can vary greatly. For some parties, it may happen in just a few meetings. For others, it can be a longer process. Sometimes, the parties may need to try the process of coming to an agreement more than once. It will really depend on each family’s unique circumstances.

If you are in the early days of your family law issues, you may still be too emotional to be able to agree on much of anything. That is normal. Or maybe you can only agree on temporary arrangements while you figure out what the longer-term solutions will be. That is also normal. Sometimes, it takes going to court one time (and finding out what that is really like) for the parties to realize that coming to an agreement out of court might be the best solution. Sometimes, the parties can come to an agreement on most issues, but not all, and a few issues might still require another form of resolution (which may be in court or out of court). But remember, for some people, coming to an agreement may never be an option, and that is okay too.

Before you start: Learn the law

Regardless of the kind of family law issue you are facing, before you agree to anything, it is important to learn the laws that apply to your situation. Be aware that this will take some time—law is not easy. Do not try to do it all in one sitting. Also, keep in mind that, if it can later be shown that one party did not understand what he or she signed, the agreement might be “set aside” (which means that the agreement won’t have to be followed and the process of finding solutions might have to start all over again).

For a complete list of Information Pages about family legal issues, you can browse the Family Law Topics page of this website, or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Figuring out what you need to agree on: Goals rather than demands

If you and the other party have decided to try to come to an agreement on your own, then you can start the process by thinking about the issues that matter to you. It may be helpful to make a list of these issues by yourself before discussing them with the other party.

When making the list, you may wish to focus not only on the specifics that you think you want, but on the “big picture” issues. Sometimes, when people look at the big picture, they realize that there is more than one specific way of doing things. For example: a separating couple might both say that they want the children to be with each parent 50% of the time, and they may assume that means the time is split between 2 houses, no matter where those houses are. However, if their goal is “as little disruption to the children as possible,” the couple may decide that it would be better for the 2 houses to be close to each other. Similarly, if you are working on an agreement to settle an estate, what you choose to do might be different if your goal is to “keep the family relationships as intact as possible” instead of “make sure I get the most money possible.”

Also, keep in mind that this first list may not include all of the issues you end up discussing. Once you actually start talking through the issues with the other party, other important issues and “big picture” goals might come up that you will want to talk about as well.

For tips about how to negotiate an agreement, see the following resources.

Web Negotiating a Solution
Justice Education Society
English
This resource is from outside Alberta. Learn more here.

Video Settling Your Family Matter in a “Civil” Way
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

For more information about negotiating separation agreements in particular, see the following resources.

Webinar Conflict, Court, or Another Way? Different Ways of Resolving a Family Dispute
Your Legal Rights
English
This resource is from outside Alberta. Learn more here. Start at 11:30.


Web How Do I Start Negotiations with My Spouse?
Clicklaw
English
This resource is from outside Alberta. Learn more here.


Web Staying Calm while Negotiating with Your Ex
Divorce Magazine
English
This is a private source. Learn more here.

For some examples of issues you may want to consider, see the “Things to think about for separation agreements” and “Things to know about other agreements” sections below.

Tip

Remember, you have certain rights under the law. Do not assume that you know your rights: things are not always as people expect—what we see on TV is not always accurate! It is very important to know your rights under the law before entering into any agreement to make sure that your agreement will be fair.

 

Don’t forget the small things

Ideally, you don’t want to leave any loose ends behind because they may lead to future disagreement. It might be a challenge to think of little details when dealing with a major change in your life. Take some time to consider whether everything has been accounted for.

For example, if you and the other party decide to sell a home as part of your agreement, some “small things” you may want to include in your agreement (but may easily forget) could be:

  • Who will hire a realtor to sell the home?
  • How will the listing price be decided?
  • How long after it has been on the market would you want to lower the listing price?

Be realistic

Be realistic with the obligations that you include in your agreement. Even though something might sound easy to do (for example, paying off your credit card in a year), it might not be. It depends on your situation. Therefore, think carefully and realistically about obligations before you include them in your agreement.

Try not to rush

You may be tempted to write up the agreement quickly and just get it over with. However, it is important to be patient and not rush your agreement. It might be much harder to change your agreement in the future if you are unhappy with it. You will want to make sure your agreement is something you will be satisfied with not only now, but in the future as well.

Things to think about for separation agreements

If you and your partner or spouse are separating and you want to come to a separation agreement on your own, below are some topics that you may wish to consider.

If you have children

  • Who will be making important decisions about your children? For example, decisions about education, religion, and health. Will one of you have the “final say” or will you be making decisions together? Will the decision-making power fall to whomever has the care of the child at the point of time in question? This does not have to be only one of you. You can share the power to make decisions about your children with the other parent. But consider if the two of you will be able to agree on the decision.
  • Where will your children live? Will they live mostly with one parent or will they spend about equal time with both parents? If they live mostly with one parent, how much time will they spend with the other parent?
  • When and where will the exchange of the children take place? Who will drive the children?
  • How much child support will one parent pay to the other, and how will additional or “extraordinary” expenses be divided between you and the other parent? Remember that you are bound by the Child Support Guidelines.
  • If only one of you is the biological parent of the children, has the other person been “standing in the place of a parent” (“in loco parentis”)?

For detailed information about how these topics are treated under the law and other things you might want to consider when making these choices, see the following Information Pages.

Partner support

Are you or your partner going to be receiving financial support (“spousal” or “partner” support) from the other party? If so, how much and for how long? Can the amount of partner support ever be changed? Should there be any conditions?

Be Aware

If there are conditions attached to the receiving of partner or spousal support from the other party, these conditions may be set aside if they are against public policy. For example, if you agree to pay spousal support to your husband or wife only on the condition that he or she does not remarry, this condition would likely be struck down in court. For a condition to be consistent with public policy, it must be consistent with the law and the general social and moral values of our society. This concept extends beyond support issues and can apply to any situation where one party holds the other party “hostage” with a condition that is not generally acceptable in our society.

For more information about how spousal/partner support is treated under the law, see the Partner Support under the Family Law Act Information Page or the Spousal Support under the Divorce Act Information Page.

Property

How will you divide family property? Are there certain properties that should be excluded from division? Were the properties acquired jointly or did one party bring it into the relationship? Is there any family debt? If so, who will pay the debts?

Be Aware

Your agreement does not bind third parties. Even if the other party has agreed to pay a debt that both of you owe, the creditor could make you pay if the other party doesn’t.

For more information about how property division is treated under the law, see the following Information Pages:

For a complete list of other Information Pages about family legal issues, you can browse the Family Law Topics page of this website, or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

More information

For more information and ideas on things to consider in your separation agreement, see the following resources.

PDF Separation Agreement Checklist
Centre for Public Legal Education Alberta
English

Web Separation Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here.

PDF Families and the Law: Child Custody and Parenting
Centre for Public Legal Education Alberta
English
See p. 14.


Webinar Separation Agreements: A Plan to Move On After Separation
Your Legal Rights
English
This resource is from outside Alberta. Learn more here.

Audio/Web When the relationship ends: protect your interests
National Association of Women and the Law
English
This resource is from outside Alberta. Learn more here.

Web Marriage Separation in Canada
Divorce Canada
English
This is a private source. Learn more here.

Video Separation Agreement Clauses
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

Video Importance of Mobility Clause in an Agreement
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

The following resources are not available online. The links below will give you an overview of the resources, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Separation Agreement
David R. Greig
English
This is a private source. Learn more here. Get the full book from a library: Alberta Law Libraries / The Alberta Library.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta LibrarySee Chapter 9 and Appendix A.
Things to know about other agreements

Cohabitation agreements

A cohabitation agreement is a contract created by two people who live together, or are about to move in together, but are not married (and not planning on getting married in the near future). In this agreement the couple can address many issues, including what will occur during the relationship and what the support and property rights of both partners will be if they separate.

For detailed information, see the Cohabitation Agreements Information Page.

Pre-nuptial and marriage agreements

A pre-nuptial agreement is an agreement made by a couple who is planning to be married. This agreement is intended to govern their marriage and what will happen if it breaks down. A marriage agreement is similar to a pre-nuptial agreement, but it is made after the couple is married. In either of these agreements, the couple can address many issues, including what will occur during the marriage and what the support and property rights of both partners will be if they separate.

For information about topics you might want to consider including in a marriage agreement, see the following resource. This resource is intended for use by lawyers in British Columbia and should not be copied as is. It is intended only to give an idea of the kinds of things you may wish to include.

PDF Marriage Agreement Drafting
Law Society of British Columbia
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.
 

For more detailed information, see the Pre-nuptial & Marriage Agreements Information Page.

Other agreements

Almost any legal issue can be agreed upon by the parties involved. Therefore, the “things to know” for other family law agreements will be different depending on the legal issue you face. It is always important to learn the law that is relevant to your agreement. To find Information Pages that discuss your legal issue in detail, you can browse the Family Law Topics page of this website, or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Negotiating the terms of your agreement

Once you understand your rights and obligations under the law, you and the other party can begin negotiating each relevant issue, and try to come to a result that satisfies both of you.

The process of negotiation involves compromise, trying to understand the other party’s needs, and communicating your needs to the other party. Having a “give and take” mentality during your negotiation may work better than simply giving the other party a list of demands. Be sure to take notes of your oral agreements during your discussion. This may help you avoid discussing the same issue multiple times. For more general information about negotiating styles, see the “Negotiation” section of the Alternative Dispute Resolution Information Page.

Common mistakes in the negotiation and discussion process

If you are trying to come to an agreement on your own, then negotiating with the other party will almost always be part of the process. Below is a list of some of the things you will want to avoid doing when you are negotiating with the other party.

Insulting or disrespecting the other party

Behaviours like calling the other party insulting names will not help you in the negotiation process. Coming to an agreement on your own will only work when both parties are cooperating. When you feel like you might want to blurt something out, you can ask for a break. This does not mean you should not voice your concerns to avoid angering the other party. This type of restraint is limited to language and labels that are negative and do not add value to the conversation.

Another type of negative comment you may wish to avoid is discounting the other party’s feelings. This includes insensitive remarks such as “stop whining” or “what are you so upset about?” Also, you may wish to avoid yelling, acting like the other party’s concerns are not important, or making offensive gestures such as eye-rolling or not paying attention when he or she speaks.

Mind-reading

“Mind-reading” is when you assume you know the motive behind the other party’s actions. It is best not to assume that you know why the other party feels the way they do or why he or she is asking for something. Instead, ask questions and have a conversation about why a topic is important to the other party.

Overusing “always” and “never” statements

Starting statements with “you always” or “you never” might lead to an argument about how many times you or the other party did or didn’t do something. Focusing on details like this will likely slow down the process.

Damaging the trust between you and the other party

Lying or omitting important facts might damage the trust between you and the other party. Trust is one of the most important things in negotiations and is one of the hardest things to build. Also, remember that one party not having a true picture of the facts can lead to an agreement being set aside by the courts.

Remember

Lying or misleading the other party may mean that your agreement is not enforceable.

For more information about preparing to negotiate and tips on how to effectively negotiate, see the following resources.

Web Negotiating a Solution
Justice Education Society
English
This resource is from outside Alberta. Learn more here.

Web Preparing For Your Mediation
Mediate.com
English
This resource is from a private source outside Alberta. Learn more here.

Web Tips for negotiating
New South Wales Government
English
This resource is from outside Alberta. Learn more here.

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Negotiating with your ex: Divorce is only the beginning
Brad McRae
English
This is a private source. Learn more here. Get the full book from a library: The Alberta Library.

Ways to negotiate

There are many ways to negotiate with another party, including negotiating face-to-face, over the telephone, or through email. Depending on your circumstances, one method might be better or more convenient than the others.

For more information about different methods of negotiating with another party and when it might be better to use a certain method, see the following resource.

Web Ways to negotiate
New South Wales Government
English
This resource is from outside Alberta. Learn more here.
Drafting your agreement: Put it down in writing

Once you and the other party have agreed on all of the relevant issues, you can turn your oral agreement into a written agreement.

Does it have to be in writing?

In theory, a verbal contract can be legally enforceable. However, it is always better to put any agreements in writing, whether typed or handwritten. There are several reasons for this.

First, when the agreement is not in writing, it can be impossible to prove what exactly was agreed to. For example, maybe you and your partner are separating and he or she agrees to give you $500 a month for partner support. If he or she later decides not to pay the $500, it could be very difficult for you to prove the terms of your verbal agreement in court because your partner could simply deny it.

Second, with a verbal agreement, both you and the other party may have different understandings of what the verbal agreement means. If the agreement is written down clearly, it can prevent misunderstandings in the future.

Third, some organizations, such as banks, may want to see an agreement in writing before they do what you ask them to.

Lastly, remember that there are certain types of agreements that must be in writing to be legally enforceable, such as an agreement about the division of matrimonial property.

Do we need a lawyer to write up our agreement?

You can either ask a lawyer to put the terms of your agreement into writing or you can write it yourself. Lawyers tend to have more experience writing family law agreements and using standard terms and clauses. Therefore, having a lawyer write your agreement may save you some trouble.

A lawyer will also be able tell you about the obligations and duties arising out of the agreement, what rights you are giving up because of your agreement, and how the agreement might affect other things you may not have been aware of, such as tax consequences, debt owed to other people, or property in other places.

However, this does not mean you cannot write your own agreement that will have the same legal effect as an agreement written by a lawyer. The important thing to remember when drafting your own written agreement is that your agreement must be clear about the parties’ intentions. The courts will generally uphold a fairly negotiated agreement as long as the terms are reasonable.

Regardless of who puts the agreement in writing, you must review it carefully to make sure that it accurately and fully reflects your intentions. Make sure all the issues that were agreed upon have been included in your agreement. You must also make sure that all legal requirements are met.

Remember

If you are making an agreement that deals with the division of matrimonial property, you will have to consult a lawyer and get independent legal advice (and a certificate to prove it). Even if your agreement does not deal with matrimonial property, if one or both parties did not get independent legal advice before signing the agreement, a court may decide that the parties did not truly understand the contract when they signed it, and may “set aside” the agreement as a result. Independent legal advice is much cheaper than having to settle a matter in court later. Also, your lawyer may be able to point out things that you will want to change. For more information, see the “Getting independent legal advice” section below, as well as the “Out of court resolution options” section of the Property Division for Married Spouses Information Page.

  

Some things to consider when you are putting your agreement in writing

General considerations

When you are writing your agreement, there are a few general guidelines that you may wish to follow: 

  • avoid “legalese”;
  • be as clear as you can; and
  • avoiding leaving the details to the future (in other words avoid “agreeing to agree at a later date”).

For more information about these guidelines, including examples, see the following resource.

Web Family Law Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more hereStart with “Drafting considerations.”

Be careful when using sample clauses and templates

You may have seen agreement “templates” (sample agreements) available on the internet or at bookstores. You can also get templates from your local library. One example is the following resource, which is not available online. The link below will give you an overview of the resource, and you can find the full book at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Separation Agreement
David R. Greig
English
This is a private source. Learn more here. Get the full book from a library: Alberta Law Libraries / The Alberta Library.

Be careful using these templates. The law changes all the time and such templates are not always current. In addition, no template is specific to your circumstances. Everyone’s situation is unique. Before you copy any clause into your agreement, it is important to carefully read through it to make sure you know what it means, and that it applies to your circumstances. Even if the clause sounds good or if you know someone else who used it before, that does not mean that it will be suitable for your situation. You must understand every part of a template before you use it in your agreement. Otherwise, you will not know if the agreement is appropriate or something you are willing to agree to.

Although you may wish to use these templates as a guide, remember that they are not a substitute for learning about your legal rights and responsibilities and getting legal advice. Also, some of these templates can be quite expensive, and you may be able to get some legal advice for a similar cost.

Remember how it can go wrong: Making family law agreements valid and enforceable

Family law agreements are a bit different than other contracts (such as business contracts). Even though they are based on the same principles, if a family law agreement is brought to court, the court may not hold it to the same standards as ordinary contracts. The courts recognize that many family law agreements are made during “tough times” where one or both parties can be emotional and vulnerable.

Therefore, it is worth it to make sure, to the best of your ability, that both the terms of your agreement and the negotiation process are fair in case you end up going to court one day and the validity of your agreement is questioned.

Some examples of unfairness that courts have accepted include if one party:

  • takes advantage of the other party’s emotional vulnerability;
  • has a strong influence over the other party through oppression and/or dominance;
  • controls the family’s money;
  • has significant influence over the children; or
  • does not give adequate financial disclosure.

In Alberta, especially with spousal and partner support agreements, the court can set aside the agreement if it thinks that it is unfair and either of the following circumstances exist:

  • If the party who is unhappy with the agreement signed it without getting independent legal advice; or
  • In the case of married spouses, if one spouse considered signing the agreement so that he or she would be allowed to remarry within his or her faith by the other spouse.

For more information about what might make an agreement unenforceable, see the “Before you start: The basics about agreements” section on the Law tab of this Information Page, and the following resources.

Video Separation Agreement "Do it Yourself" Legal Kits for Family Law
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.

Web Can the Separation Agreement be Overturned?
Allan Law Barristers & Solicitors
English
This is a private source. Learn more here.

Video Should I put a separation deal in writing? - Separation Agreements
AdviceScene (via YouTube)
English
This is a private source. Learn more here.

PDF Separation Agreements: Your Right to Fairness
Legal Services Society
Chinese, English, French, Punjabi, Spanish, Tagalog
This resource is from outside Alberta. Learn more here.

Is there a certain format to follow?

There is no strict format to follow when drafting an agreement, because there are many types of family law agreements that will each include different things. People have family law agreements for many topics.

However, keep in mind that there are certain things you want to make sure you do:

  • have your agreement in writing,
  • have a date when the agreement will come into effect, and
  • have both parties’ and witnesses’ signatures on the agreement.
Getting independent legal advice

Independent legal advice is only required for agreements about property division for married spouses. However, you may wish to get independent legal advice whenever you enter into any type of family law agreement. This is because if one or more parties did not get independent legal advice before signing the agreement, a court may decide that the parties did not truly understand the contract when they signed it, and may “set aside” the agreement as a result.

Getting independent legal advice is also a good idea because a lawyer will catch any topics or issues that you may have missed or hadn’t thought about. They can also clarify any unclear terms or conditions in your agreement.

Be Aware

Even if the other party does not want independent legal advice, you may want to insist that they get independent legal advice to protect you. This is because doing so will make it more likely that the agreement is enforceable.

If you and the other party decide to write your own agreement, you can get a lawyer to review that written agreement at any time before the final signing. You can even see a lawyer earlier if you want legal advice on the terms of your agreement or whether you should enter into an agreement at all. The lawyer will make sure that you understand the law and the legal consequences about the steps being taken, including your rights and responsibilities. The lawyer will also be able to tell you what options you might have if you don’t sign the agreement. Getting independent legal advice is one way to help prevent either party from saying that they didn’t understand the agreement when it was first drafted, or that the agreement wasn’t fair.

The lawyer who gives legal advice will usually sign a Certificate of Independent Legal Advice. This certificate confirms that you:

  • understood the agreement,
  • received advice about how the agreement affects your legal rights and interests, and
  • chose to enter into the agreement on your own free will. There should be a specific clause in the certificate that states that the lawyer confirms that you entered the agreement without being pressured into it.

For more information, see the Working with a Lawyer Information Page.

For more information about getting independent legal advice and why it can be very important, see the following resources.

Web All About Independent Legal Advice (Family Law ILA)
Kahane Law Office
English
This is a private source. Learn more here.

Video Certificate of Independent Legal Advice
Kahane Law Office
English
This is a private source. Learn more here.

Video Independent Legal Advice and Separation Agreements
Feldstein Family Law Group
English
This resource is from outside Alberta. Learn more here.

Video Demandez à un expert - Vidéo 1
Family Law NB
French
This resource is from outside Alberta. Learn more here.

Web Why do I need a lawyer for my divorce?
Barriston Law LLP
English
This resource is from outside Alberta. Learn more here.
Finalizing the agreement

To finalize your agreement, each party will have to sign it. Once it is signed, the agreement is binding (meaning that you will each have to follow the terms of the agreement or the other party could take legal action against you). The agreement will take effect on the date it was signed, unless the agreement states a different day that it will take effect.

It is a good idea to each have a witness to your signature. Your witness watches you sign the agreement, and then he or she signs the agreement to “prove” that he or she watched you sign. The witnesses do not have to read the agreement. In Alberta, a witness can be anyone who is over the age of 18 and who does not stand to benefit from the agreement.

You do not have to be in the same room with the other party. Each party (with his or her witness) can sign the agreement at separate times. If that occurs, the agreement would take effect when the last signatures are made (unless the agreement states a different date).

Tip

Before you sign the agreement, you may want to take some time to think about it. Family issues are important and often tricky. You’ll want to make sure that you do not rush into things and that you are certain about your decisions. If you are unsure whether you should sign an agreement, you may want to get independent legal advice from a lawyer. For more information, see the “Getting independent legal advice” section above.

If you and the other party both had independent legal advice, then usually, four original copies of the agreement will be signed so that both parties and each of their lawyers will keep an original copy. Original copies are different from photocopies. Original copies are physically signed by all parties.

You may also want to turn your agreement into a consent order and file it with the Court. If that is the case, you may need to sign additional original copies. For more information about why and how to turn your agreement into a consent order, see the “Turning your agreement into a court order” and “Enforcing the agreement” sections below.

Turning your agreement into a court order

Once you have an agreement, it applies to everything as you move forward. Sometimes, you may need to show other people what the agreement said. For example: if you agree to divide a pension immediately, you will need to show the pension administrator what you agreed to, so that the pension payout can be calculated.

However, some people may not accept copies of agreements (even if there was independent legal advice): they may require a court order. To continue with the above example: some pension administrators will not complete a payout without a court order that shows exactly what was agreed upon.

To deal with this issue, the parties who made the agreement may want to have the agreement turned into a court order. When all of the parties agree, you can turn your agreement into a “consent order.”

Turning your agreement into a consent order can also save you time later if there is a problem with one party not following the agreement—see the “Enforcing the agreement” section below for more information about that.

For information about turning your agreement into a consent order, see the “Consent orders” section of the Information Pages that deal with your family law issues—a list of these Information Pages can be found on the Family Law Topics page. More general information can also be found on the Understanding the Court System & Processes Information Page.

Enforcing the agreement

Having an agreement does not mean that the other party will necessarily follow that agreement. Nor does it mean that you will be able to do anything about it if he or she doesn’t follow the agreement. For that reason, once you have an agreement you may wish to turn it into a consent order—see the “Turning your agreement into a court order” section above for more information about that. Having a court order is always the first step to enforcement.

“Enforcement” means making the other party follow what they have agreed to or were ordered to do. If you have a court order, and the other party does not do as he or she is supposed to, you will be better prepared to take steps to enforce what you agreed to. For example, you will be able to take the issue to court more quickly.

Be Aware

It's never too late to ask for a court order. You can always ask the court to order the other party to follow your agreement.

For information about enforcement, see the Information Pages that deal with your family law issues—a list of these Information Pages can be found on the Family Law Topics page. More general information can also be found on the Understanding the Court System & Processes Information Page.

Changing the agreement

Sometimes, you might need to change (or “amend”) your agreement. This can happen even if you and the other party have already spent a lot of time coming to an agreement in the first place. It is never a good idea to change an agreement by crossing a term out, replacing it with another, and putting your initials next to the change. Simply crossing out terms can lead to problems with enforcing the agreement in the future.

How to make changes when both parties agree

An agreement can be changed if all of the people who signed the agreement agree to that change (this is called an “amending agreement”). The amending agreement should specify which particular parts of the original agreement have been changed and then set out the new agreement.

If the original agreement was filed in court as a consent order, the amended agreement can be turned into a court order as well. For more information about how to turn an agreement into a consent order, see the “Turning your agreement into a court order” section above.

How to make changes when the parties do not agree

If the parties cannot agree about changing the agreement, they may need to try one, or several, different forms of alternative dispute resolution, or take the matter to court. For more information about out-of-court dispute resolution processes, see the Alternative Dispute Resolution Information Page.

What if we just cannot come to an agreement on our own?

Coming to an agreement on your own can be difficult. If you tried to come to an agreement, but were not able to do so, don’t feel discouraged. You may have to try to come to an agreement more than once. If the issue you are trying to agree on is not urgent, you may want to give the parties some time to “cool down” and try to come to an agreement again at a later time.

Sometimes, it takes going to court one time (and finding out what that is really like) for parties to realize that coming an agreement out of court might be the best solution. Or you can come to an agreement on most issues, but not all, and a few issues might still require another form of resolution (which may be in court or out of court). Sometimes, it might be necessary to get a little bit of help from someone outside of your relationship. There are lots of resources available to you. But remember, for some people, coming to an agreement may never be an option, and that is okay too.

If you and the other party can’t agree but don’t want to go to court, you may want to consider alternative dispute resolution (ADR) options (such as mediation). For more information, see the Alternative Dispute Resolution Information Page.

If you are thinking about going to court to settle your disagreement, you may want to consider working with a lawyer. You do not have to work with a lawyer in order to go to court. You also do not have to go to court just because you are working with a lawyer. If you are going to court but not working with a lawyer, you will be a “self-represented litigant.”

For more information about working with a lawyer, see the Working with a Lawyer Information Page.

For more information about representing yourself in court, see the Representing Yourself in Court Information Page.

Regardless of whether you plan to work with a lawyer, if you are thinking of going to court to resolve your disagreement, you will need to learn about the Canadian legal system. For more information about how to navigate the legal system, see the following Information Pages:

Provincial Court

Queen's Bench

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