Relationship Breakdown if You Had a Domestic Contract (Cohabitation, Pre-nuptial, or Marriage Agreement)

Law

Couples who are separating or divorcing may have previously signed a domestic contract together (such as a cohabitation agreement, pre-nuptial agreement, or marriage agreement). See the sections below to learn about:

  • What happens to your domestic contract when you separate
  • What happens if a separation matter was not dealt with in your domestic contract
  • Changing the terms of your domestic contract when you separate
  • Coming to an agreement out of court about your separation matters
  • Legal reasons a court may “set aside” (cancel) a domestic contract
  • Religious considerations: the Muslim Mahr and the Jewish Get

Choose the Process tab above for detailed information about the court process.

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: July 2017
Who is this Information Page for?

This Information Page is for couples who are separating and have entered into a domestic contract (a cohabitation, pre-nuptial, or marriage agreement) at some point in their relationship.

Much of the information on this Information Page applies to both married and unmarried people. However, there are still some differences. Read the content carefully to make sure the topics and issues discussed apply to you.

If you are separating from another person but you do not have a domestic contract, then you will want to learn about the rights and responsibilities you have under the law. The Information Pages listed below are a good starting point. You may also want to use the Guided Pathway by clicking on the “Guided Pathway” link at the top of this page to be directed to Information Pages that apply to you.

If your relationship is not breaking down and you want to create a domestic contract with another person, see either of the following Information Pages:

In general, the law and process on this Information Page are for people who live in Alberta. Although some topics may apply to all separating couples, much of the law around the breakdown of romantic relationships is different in each province. If you are not sure if you “live” in Alberta (for example, if one of you divides your time between Alberta and another province) see the Family Breakdown and Out-of-Province Issues Information Page.

If you live on-reserve, you will need to review the information on the Family Breakdown if You Live on Reserve Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says about separating when you have a domestic contract in Alberta. For information on the process of carrying out or disputing the terms of your domestic contract, see the Process tab. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

The first topic is What the words mean. Please read this section even if you think you already know what the words mean. To understand the resources on this page, you will need to understand the legal terms.

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.

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.

spouse

A person who is legally married to another person.

Be Aware

Some of the resources linked on this Information Page use the term “spouse” to describe both married partners and unmarried partners.

partner

A person who is in a domestic relationship with another person. This term refers to people in romantic relationships, both heterosexual and homosexual, as well as non-romantic domestic relationships.

“common-law” partner

In Alberta, the term “common-law” only applies to certain couples and only for certain federal laws (such as the Income Tax Act). Under most federal laws, the term “common-law” refers to a couple who has lived together in a romantic relationship:

  • for at least one year; or
  • for less than one year but they have a child together.

Under Alberta’s provincial laws, there is no such thing as “common-law” partners and “common-law” relationships. In Alberta, similar rights and responsibilities come from being in an “Adult Interdependent Relationship” (see below).

Be Aware

Under the federal Indian Act and the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, the term “common-law” is used only for a couple who has been living together in a romantic relationship for at least one year, whether or not they have had a child together.

Adult Interdependent Relationship (AIR)

The term used in Alberta to describe what many people might think of as a “common-law” relationship.

A person is in an Adult Interdependent Relationship if he or she has been living with and in a “relationship of interdependence” with another person:

  • for 3 years; or
  • for less than 3 years if they have signed an Adult Interdependent Partner Agreement (see below); or
  • for less than 3 years if they have or adopt a child together.

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.
Be Aware

The relationship does not have to be romantic or sexual to meet these requirements; it can be non-romantic (also called “platonic”).

Adult Interdependent Partner (AIP)

A person who is in an Adult Interdependent Relationship with another person (see above).

Adult Interdependent Partner Agreement (AIPA)

A written contract in which 2 adults agree to become Adult Interdependent Partners. That contract must be in the form required by the Alberta Adult Interdependent Partner Agreement Regulation—see the following resource.

PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English

cohabitation

Living together in the same home.

cohabitation agreement

A contract created by 2 or more people who:

  • live together, or are about to live together; and
  • are not married, and do not plan to get married in the near future.

In this agreement the parties can address many issues, such as:

  • how bills will be divided between the parties;
  • whether one party will pay partner support to the other if they were to separate; and
  • how property will be divided between the parties if they were to separate.

pre-nuptial agreement

A contract created by 2 people who are planning to get married in the near future. This agreement can include rights and responsibilities they have toward one another during the marriage, as well as after the marriage ends.

In this agreement, the parties can address many issues regarding their marriage, such as:

  • how bills will be divided between the parties;
  • whether one party will pay spousal support to the other if they were to separate; and
  • how property will be divided between the spouses if they were to separate.

marriage agreement

A contract created by 2 people who are already married. This agreement can include rights and responsibilities they have toward one another during the marriage, as well as after the marriage ends.

In this agreement, the spouses can address many issues regarding their marriage, such as:

  • how bills will be divided between the parties;
  • whether one party will pay spousal support to the other if they were to separate; and
  • how property will be divided between the spouses if they were to separate.
Be Aware

Some of the resources linked on this Information Page use the term “marriage agreement” to describe any agreement that governs a marriage—regardless of whether the agreement is signed before or after two people get married.

separation

When a couple (married or unmarried) decides to live apart from each other because their relationship has broken down.

independent legal advice

Guidance from a lawyer about a contract a person wants to sign before they sign 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.

“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).

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.”

“set aside” an agreement

When a court “sets aside” an agreement, it believes that making one of the parties carry out their “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 2 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 they 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.

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).

enforcement

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

The laws that may apply to you

As you work through your separation issues, you may wish to read the laws (also called “statutes” or “acts”) that apply. In some circumstances, the law is the same for both married and unmarried people. However, in other circumstances, the laws are very different.

The laws included on this Information Page are:

Web Family Law Act (and associated Regulations)
Government of Alberta
English

Web Divorce Act (and associated Regulations)
Government of Canada
English


PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English


Web Alberta Rules of Court
Government of Alberta
English

Web Provincial Court Act (and associated Regulations)
Government of Alberta
English


Web Alberta Evidence Act
Government of Alberta
English

Web Canada Evidence Act
Government of Canada
English

Web Indian Act
Government of Canada
English

When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

If you plan on representing yourself in court, you will also need to know about “case law.” In general, “case law” refers to the idea that it is up to judges hearing individual cases to decide:

  1. the exact meaning of the words in the laws (called “interpretation”); and
  2. how that meaning applies to the people in those cases (called “application”).  

This means that what happens in other cases can affect what happens in your case. It also means that there are cases decided before that govern how cases are decided now. For more information on case law, see the Our Legal System Information Page and the Educating Yourself: Legal Research Information Page.

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 proceedings.

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.
  • If you are planning on leaving a violent situation and deciding which steps to take first, see the Safety Planning Information Page.
  • 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.
  • If you were pressured into signing a domestic contract by the abuser, it may be a reason to “set aside” some or all of the agreement. This means if you agreed to certain terms under pressure (also called “duress”), a court might be able to help you.
  • 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.
  • Do not just believe an abuser who has told you that “You can’t leave me” or “You’ll get nothing.” It is not up to the abuser; it is a question of law. Keep reading to find out more.

How to use this website

Many of the resources on this Information Page have both general family law information as well as how that information applies in situations of family violence. Where appropriate, resources specific to situations of domestic violence are noted with this icon:

Family Violence

 

Be sure to read these resources thoroughly, because it is sometimes difficult to understand what to do in situations of violence without understanding the legal picture in general.

More information

For more information on how domestic violence can affect your family law issues, see the Family Violence and the Legal Process Information Page.

There are both legal and social services that may be able to help you. See the Family Violence: Resources to Help Information Page.

At the start: Breakup has just occurred

Sometimes, a separation can come as a bit of a surprise. Perhaps your partner or spouse has just told you that he or she is leaving. Maybe it is you who is ready to leave. This can be scary and overwhelming. That is natural.

There are some steps you may want to take immediately after you have separated. These steps may vary depending on whether or not you are married.

Although you have a domestic contract which is intended to govern your separation, it may be helpful to take these steps in case either of you “challenge” the agreement.

For more information about immediate steps to take when a couple separates, see the Immediate Issues for All Separating Couples Information Page.

What happens to your domestic contract when you separate?

The goal of making a domestic contract (cohabitation, pre-nuptial, or marriage agreement) was to create a set of rules for what would happen if you ever separated. This way, if you separated, most of the legal and financial issues would have been worked through already. You would not have to deal with them at the same time as the emotional side of the separation.

The starting position about domestic contracts is that they are meant to be followed. Therefore, if you are both happy with the terms of your domestic contract, then you can simply follow your agreement and part ways.

However, you may feel like your domestic contract is no longer appropriate to govern your separation. For information about your options in this situation, see the section below called “If you’re no longer happy with the terms of your domestic contract.”

Also, there may be legal issues that you did not include in your agreement. For information about this, see the section below called “What happens if an issue wasn’t dealt with in our domestic contract?”

Be Aware

A pre-nuptial agreement does not take effect until the parties are married. This means if you did not end up getting married, the terms of your pre-nuptial agreement will not govern your separation. Instead, depending on what type of relationship you were in, the law will give you different rights and responsibilities. See the Ending a Non-married Romantic Relationship Information Page for more information about what those rights and responsibilities may be.

For more information on what happens to a domestic contract upon separation, see the following resource.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 22.
The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?

When you separate, your domestic contract will likely govern some or all of the issues between you. However, you may also need to know what the law says about your situation. For example:

  • there may be issues that are not covered by your domestic contract; or
  • some or all of the terms in your domestic contract may be set aside by a court.

In these situations, the law will give you different rights and responsibilities depending on what kind of relationship you were in.

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.

Specifically:

  • For support and parenting issues, 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 the Alberta Family Law Act. If you were not married, Canada’s Divorce Act and Alberta’s Matrimonial Property Act do not apply to you.

As a result, on this Information Page, you may be directed to other Information Pages on 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.

What happens if an issue wasn’t dealt with in our domestic contract?

There may be a legal issue that was not dealt with in your agreement. Then you must deal with that issue as if you do not have a contract at all. The law may give you certain rights and responsibilities with respect to that particular issue. This will depend on the kind of relationship you were in when you separate. For example: Your domestic contract did not address spousal/partner support. Then you may be entitled to it if you are married or if you are in an Adult Interdependent Relationship.

To learn what rights and responsibilities you have under the law, see the Information Pages listed below.

If you are married and wish to use the Divorce Act to address your unresolved issues, see the following Information Pages.

If you are not married, or married and wish to use the Family Law Act to address your unresolved issues, see the following Information Pages.

The choice about whether to use the Divorce Act or the Family Law Act is extremely important. For information about choosing which law to use, see the Ending a Married Relationship Information Page.

If you’re happy with the terms of your domestic contract

In general, when a couple has a valid domestic contract, the terms of that contract will govern the legal issues that come up during their separation.

If you are both happy with the terms of your domestic contract (and all of the terms are legally enforceable), then you can simply follow your agreement and part ways.

This was the goal of having a domestic contract in the first place. You wanted to work through the legal and financial aspects of a possible separation in advance. Now you do not have to figure them out at the same time as dealing with the emotional side of your separation.

You may wish to make sure that the other party will continue to follow the agreement. For more information, see the “Enforcing your agreement” section on the Process tab of this Information Page.

If you’re no longer happy with the terms of your domestic contract

You may feel like your domestic contract is no longer appropriate to govern your separation. Perhaps you entered into a domestic contract many years ago. There may have been some big changes in your life since you signed the agreement. For example: you had children, or you were diagnosed with an illness.

The goal of having a domestic contract is to protect the parties from future uncertainties. However, there may be times when it should not be followed. In this case, either you or your partner may want to change your agreement, or parts of your agreement.

If you and your partner can agree to the change

You and your partner may agree that the terms of your domestic contract are no longer suitable. Then you can simply decide together how to change them or that you will discard the agreement entirely. As long as you can agree, you can largely arrange your affairs in any way you see fit.

For more information on how to come to an agreement on your own (including changing an existing agreement), see the Coming to an Agreement on Your Own Information Page.

Be Aware

There are certain issues where the Court will have the “final say” no matter what the people involved have agreed to. For example, a divorcing couple may agree ahead of time that neither spouse will pay child support to the other. However, when they do their divorce paperwork, the Court will not allow this. Any decision regarding children (such as guardianship, contact with the child, and child support) must be made in the children’s best interests. Not receiving child support is not in their best interests.

If you and the other party cannot agree to the change

You may not be able to come to an agreement about changing your domestic contract on your own. This does not necessarily mean you have to go to court. You and the other party can get help to resolve your differences out of court, and come up with changes to your contract.

You may want to consider mediation or another form of alternative dispute resolution. In these processes, a trained third party can help you come to an agreement. For more information about the different kinds of out-of-court dispute resolution options, see the Alternative Dispute Resolution Information Page.

Family Violence

If you’re leaving an abusive situation, some out-of-court dispute resolution options such as mediation may not work. This is because alternative dispute resolution requires trust, honesty, and compromise between the parties. This may not be possible if one party has power over the other. Abusers may also use this process to continue their abuse through intimidation or threats.

If you simply cannot reach an agreement with the other party out of court, then you may have to apply to a court to change your agreement. This is called “setting aside” an agreement. The whole agreement, or just parts of the agreement may be set aside.

Generally, a court will be reluctant to change a domestic contract if it:

  • was entered into fairly; and
  • meets all the legal requirements.

If you want a court to set aside an agreement, you must give the court a valid legal reason to do so. For information about what these are, see the “Grounds for setting aside any domestic contract” section below.

Be Aware

A court will not change a contract just because one or both parties no longer like it. It will also not change a contract just because the contract gives them less than they would otherwise get under the laws that govern separation and divorce.

For more information, see the following resource.

Video Property Division
Edmonton Community Legal Centre
English
Start at 2:20 and at 17:50.
Out of court resolution options

You do not have to go to court to try to change your domestic contract. It is possible to agree. Although court is an option, it is merely one option in a range of possibilities.

You can agree on your own or with the help of a “third party.” A third party is a person who is not directly involved with the legal issue, but is connected to it in some other way. For example, professionals who work with families to sort through legal problems.

However, before coming to any agreement, it is important to understand your rights and what you might be entitled to.

Coming to an agreement on your own

The first out-of-court option is to come to an agreement on your own. This is sometimes called the “do-it-yourself” or the “kitchen table” option. Although this can work for many people, it does not work for all. In certain situations, such as in many cases of domestic violence, it may not be at all appropriate. For more information, see the Coming to an Agreement on Your Own Information Page.

Mediation

If you need a bit of help to resolve your issues, you can always use a mediator. In mediation, the decisions are still made by the parties. But they reach those decisions with the help of an independent and trained third party. The mediator does not take sides and does not make the decisions for you. For more information, see the Alternative Dispute Resolution Information Page.

Arbitration

Arbitration also involves the help of an independent and trained third party. However, the third party is hired to make a decision. In other words, the arbitrator hears both sides, reviews documents and evidence, and comes up with a binding decision. For more information, see the Alternative Dispute Resolution Information Page.

Negotiating through lawyers

“Negotiation” is a term used to describe any process where there is a “discussion” to resolve a disagreement or conflict. The goal of the discussion is to come to an agreement. This is different from simply “presenting sides” and having someone else make a decision for you. Coming to an agreement on your own and mediation are two forms of negotiation.

You can also negotiate though lawyers. In fact, many family law cases are solved in this way. The parties resolve their issues before ever getting in front of a judge by suggesting different solutions through their lawyers. Most lawyers will try to negotiate before they decide to take the case to court.

For more information, see the Alternative Dispute Resolution Information Page.

Collaborative Family Law

Collaborative Family Law is another way of working together. It has 2 key features:

  • each party hires a lawyer; and
  • the parties and the lawyers agree to resolve all matters without going to court or threatening to go to court.

For more information, see the Alternative Dispute Resolution Information Page.

More information

The following resources are good overviews of all of the above non-court options.

PDF Breaking up: Without court
Canadian Bar Association
English

PDF Se séparer sans l’aide des tribunaux
Canadian Bar Association
French

Video Property Division
Edmonton Community Legal Centre
English
Start at 2:55.

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.

Web Family Law Education for Women
Metropolitan Action Committee on Violence Against Women and Children
Arabic, Chinese, English, Farsi, French, Korean, Punjabi, Russian, Somali, Spanish, Tamil, Urdu
This resource is from outside Alberta. Learn more here. Choose your language, then see topic #1.

Web Resolving disputes - think about your options
Government of Canada
English

Grounds for “setting aside” any domestic contract

This section discusses some possible grounds to set aside any domestic contract. These include:

  • missing, incomplete, or misleading disclosure;
  • duress;
  • undue influence;
  • unconscionability;
  • terms that are against the law or against “public policy”; and
  • failure to understand the “nature and consequence”of the contract.
Be Aware

For pre-nuptial or marriage agreements, there are additional reasons that the agreement could be set aside. See the “Additional grounds to set aside a pre-nuptial or marriage agreement” section below for more information.

This is a complex area of law. Claiming any of the grounds listed below does not mean that a court will necessarily set aside the agreement. The grounds must be proven, and the Court’s final decision will depend on the exact facts of the case.

Missing, incomplete, or misleading disclosure

Disclosure” means that all parties involved in the agreement must give each other full and accurate information, including financial information. The parties cannot lie about the facts upon which the agreement is based. Fair and lasting agreements are based on being honest.

Canadian courts have been quite strict in requiring the parties to provide accurate and complete disclosure when entering into a domestic contract. If the Court finds that one party lied about what they owned, there is a good chance that some or all of the agreement will be set aside. This especially true if the lie is about a significant asset. It is even more likely if the Court finds that one party intentionally lied about their assets. However, the agreement may be set aside even if the misinformation was accidental.

This does not necessarily mean that every mistake or omission will cause an agreement to be set aside. In the past, courts have upheld domestic contracts where one party did not provide complete disclosure. Other factors that were considered include:

  • the lack of disclosure was not intended to mislead the other party;
  • all other legal requirements were met; and
  • neither party was vulnerable.

Although complete disclosure is an important factor, it is not the only factor a court will consider when looking at a domestic contract.

Duress

Duress” means that one person directly or indirectly threatened the other. As a result, one party did not freely and voluntarily enter into the contract.

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 the court finds there was duress when the parties entered into the agreement, the agreement may be set aside.

At the time the contract was signed, a person may have said that they were entering into the agreement freely and voluntarily. However, that does not mean that is the “end of the story.” That person can still claim to have been under duress and try to have the agreement set aside because of it. But they would have to find a way to prove that they were under duress.

To claim that a contract was entered into under duress, a person must be able to show that there was a great deal of fear and pressure. It was so much that the person was unable to exercise their independent judgment.

For example:

  • A woman signs a pre-nuptial agreement shortly before the wedding.
  • She signs it because she is worried that the wedding would not happen if she didn’t.
  • All the other elements of a valid agreement are present. For example: complete disclosure and independent legal advice.
  • This case would generally not be enough to make a successful duress claim. But it might be. It would depend on the exact circumstances of the case.
Be Aware

Duress is not an easy claim to make. If you don’t have much evidence to support your claim of duress, you may want to ask a lawyer for advice. See the Working with a Lawyer Information Page.

For more information about duress, 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.

Undue influence

Undue influence” occurs when one person has power over another person, and uses that power to benefit himself or herself 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.

Often, undue influence and duress are linked with one another.

Unconscionability

Unconscionability” is a term used to describe situations of extreme unfairness. In other words, it would be against our conscience to let this thing happen. When an agreement is unconscionable, it means that the “deal” was so bad for one of the parties that it basically amounts to fraud against that party. The unfairness can be related to either the terms of the agreement, the process of entering into the agreement, or both.

Unconscionability has not yet been a factor to overturn a domestic contract in Alberta, although it may become relevant in the future. In Alberta, an agreement is generally upheld in court as long as the parties:

  • are fully informed of their legal rights;
  • get full disclosure about the other party’s assets; and
  • get independent legal advice.

But this isn’t the case in all provinces in Canada. In British Columbia, the Court has struck down family law agreements because they were too unfair.

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

If you have terms that are against the law or “public policy” in your domestic contract, those terms will not be enforceable.

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.

For example: in a cohabitation agreement, you may have tried 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.

Failure to understand the “nature and consequence” of the contract

To understand the “nature and consequence” of an agreement means that you are aware what kind of an agreement it is and the purpose of it.

For example:

  • You signed a cohabitation agreement thinking it was an offer to purchase a condo.
  • You clearly did not understand what kind of a document it was. In other words, you did not understand the nature of the document you signed.
  • Not knowing that it is a cohabitation agreement, you would not understand that its purpose is to govern any future separation of your relationship. In other words, you did not understand the consequence of the agreement.

This is different from not understanding the value of an asset owned by the other party.

For example:

  • Your partner owns a farm.
  • In a pre-nuptial agreement, you agree to not divide the farm if you separate.
  • When you make the agreement, your partner gives you information about the farm. You also get independent legal advice before signing it.
  • When you later separate, it turns out that the farm is very valuable.
  • You now wish to change the agreement and receive some of the value of the farm.

In this case, the Court may not set aside the agreement. The Court could determine that you did understand the nature and consequence of the agreement. You simply did not give enough thought to the details of the agreement.

More information

For more information about the possible grounds to set aside a family law contract, see the following resources.


Web Are Pre-Nuptial Agreements Enforceable?
Kirk Montoute LLP
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.

Web Changing Family Law Agreements
Clicklaw
English
This resource is from outside Alberta. Learn more here. See “Intervention by the courts.”

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 Setting Aside a Prenuptial Agreement – LeVan v. LeVan
Wagner Sidlofsky LLP
English
This resource is from a private source outside of Alberta, and can be a challenge to read. Learn more here.

PDF Marriage and Cohabitation Agreements: Drafting and Setting Aside Agreements under the FLA
Continuing Legal Education Society of British Columbia
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

Web Family Law Education for Women
Metropolitan Action Committee on Violence Against Women and Children
Arabic, Chinese, English, Farsi, French, Korean, Punjabi, Russian, Somali, Spanish, Tamil, Urdu
This resource is from outside Alberta. Learn more here. Choose your language, then see topic #6.

Video Domestic Contracts: ASL
Metropolitan Action Committee on Violence Against Women and Children
American Sign Language
This resource is from outside Alberta. Learn more here.

Audio Family Law Topics in Audio
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here. Choose “Domestic Contracts.”

Web Safeguarding Enforceability Of Domestic Contracts
Kirk Montoute LLP
English
This is a private source and can be a challenge to read. Learn more here.

Web Overturning a Marriage Contract: Balsmeier v. Balsmeier, 80 R.F.L. (7th) 274 (Ont. S.C.J.)
Feldstein Family Law Group
English
This resource is from a private source outside of Alberta, and can be a challenge to read. 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 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 Library. See Chapter 15.

Book The Nature of the Beast (article included in "Cohabitation and Pre-nuptial Agreements")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Pitfalls of Matrimonial Agreements (article included in "Family Law Boot Camp")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book If You Love Me, Put It In Writing
Alison Sawyer
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See p. 23-25.

Additional grounds to set aside a pre-nuptial or marriage agreement

In addition to the grounds discussed in the section above, agreements that deal with matrimonial property division have a few other grounds on which they could be set aside by the Court.

These extra grounds come from the Matrimonial Property Act (MPA). This is the law in Alberta that deals with property division for married spouses. The MPA has specific requirements for pre-nuptial or marriage agreements that deal with property division. They must meet these requirements to be valid and enforceable when a married couple separates.

These Matrimonial Property Act requirements are:

  • the agreement must be in writing;
  • the agreement must have been freely agreed to; and
  • each spouse must have had independent legal advice and signed the agreement in front of their lawyer. This means that each must have their own lawyer. Each lawyer will then give a “Certificate of Independent Legal Advice.”

If your agreement deals with matrimonial property division but does not meet these requirements, you can apply to a court to set aside all or part of it.

Religious considerations: The Muslim “Mahr”

A Mahr is an Islamic marriage contract. In it, the groom promises to give a certain amount of money to his bride at certain times during their marriage or when certain events occur, such as upon the husband’s death or if the marriage breaks down.

In Canadian law, some Mahrs have been recognized while others have not. An Alberta court has ruled that a Mahr can be considered a valid pre-nuptial agreement if it meets all the legal requirements. See the following resource to read the case.

For more information on Mahrs and how they are recognized under Canadian law, see the following resources.

PDF Domestic Contracts: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.

PDF Muslim & Canadian Family Laws: A Comparative Primer
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.


Web Did Traditional Dowry Gift from Groom’s Family Come with Conditions?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

PDF Enforcing Mahr in the Canadian Courts
Ontario Bar Association
English
This resource is from outside Alberta. Learn more here.
Religious considerations: The Jewish get

A get is a Jewish divorce that can only be given by a husband to his wife. In the Jewish faith, a woman is considered married until she receives a get, even if she is granted a divorce in court. Therefore, if she does not have a get, she cannot remarry within the faith. If she has children with anyone else, those children will be considered illegitimate in the Jewish faith.

There have not been a lot of cases in this area. Therefore, it is hard to say whether a term like this in a pre-nuptial or marriage agreement would be enforceable after separation. However, the Supreme Court of Canada has said that removing the religious barriers to remarriage is consistent with the public policy of Canada. So such a term may be upheld in court.

See the following resources for an example of a case where this issue has been addressed.


Web Bruker v. Marcovitz (SCC)
CanLII
English


For more information about the get, see the following resources.

Web What is a "Jewish divorce"?
Luke's Place
English

PDF Why do I need a Jewish divorce? Questions & Answers about Divorce for Jewish Women
Act to End Violence Against Women
English, French, Russian, Spanish, Other languages

Blended family considerations

Under the law, blended families are treated no differently than any other families when it comes to domestic contracts.

LGBTQ considerations

Under the law, LGBTQ couples are treated no differently than anyone else when it comes to domestic contracts.

Polyamorous relationships

Under federal law, a person cannot have more than spouse, or more than one common-law partner, at the same time. Similarly, under the Alberta Adult Interdependent Relationships Act, a person cannot have more than one Adult Interdependent Partner (AIP) at the same time.

As a result, not all the parties of a polyamorous relationship can be protected under a pre-nuptial or marriage contract.

However, it is possible to have more than 2 parties to a cohabitation agreement. In fact, a cohabitation agreement may be a good way for polyamorous families to set their own “rules.” This can be helpful since neither federal nor provincial laws will give them any rights or responsibilities. However, polyamorous relationships are not recognized under the law. As a result, enforcing a cohabitation agreement between multiple romantic parties can be difficult. In particular, any term that is considered to be “against public policy” will not be enforced.

The issues that could arise in separating from a polyamorous relationship can be very complex. If you are concerned about enforcing your agreement, it may be helpful to work with a lawyer. For more information, see the Working with a Lawyer Information Page.

Process

Learn more about what you can do with your domestic contract after you have separated. See the sections below for information about:

  • Options for staying out of court (including turning your agreement into a consent order)
  • Changing the terms of your cohabitation, pre-nuptial, or marriage agreement
  • Challenging your domestic contract in court
  • The basics about the court process and what to expect

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: July 2017
Who is this Information Page for?

This Information Page is for couples who are separating and have entered into a domestic contract (a cohabitation, pre-nuptial, or marriage agreement) at some point in their relationship.

 Much of the information on this Information Page applies to both married and unmarried people. However, there are still some differences. Read the content carefully to make sure the topics and issues discussed apply to you.

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 what could happen when you separate from your spouse or partner and you have a domestic contract. Once you have the basics down, you will be in a better position to learn about the process you may want to follow.

If you are separating from another person but you do not have a domestic contract, then you will want to learn about the rights and responsibilities you have under the law. The Information Pages listed below are a good starting point. You may also want to use the Guided Pathway by clicking on the “Guided Pathway” link at the top of this page to be directed to Information Pages that apply to you.

If your relationship is not breaking down and you want to create a domestic contract with another person, see either of the following Information Pages:

In general, the law and process on this Information Page are for people who live in Alberta. Although some topics may apply to all separating couples, much of the law around the breakdown of romantic relationships is different in each province. If you are not sure if you “live” in Alberta (for example, if one of you divides your time between Alberta and another province) see the Family Breakdown and Out-of-Province Issues Information Page.

If you live on-reserve, you will need to review the information on the Family Breakdown if You Live on Reserve Information Page.

You are currently on the Process tab of this Information Page, which has information on what happens to a domestic contract when the parties separate. For information on the law surrounding this area, see the Law tab. There is also important information in the Common Questions and Myths tabs above.

Enforcing your agreement: Turning it into a consent order

Both parties may be happy with the terms of their domestic contract when they separate. This puts them in a better position than most separating couples.

However, having an agreement right now does not mean that the other party will always follow that agreement. When circumstances change, the parties involved may feel differently about the terms of their domestic contract.

For that reason, once you separate, you may wish to take steps to make sure that your agreement can be enforced. You can do this by applying in court for a consent order that includes the terms of your domestic contract.

Deciding which court to use

In general, a consent order can be granted in either the Provincial Court (PC) or the Court of Queen’s Bench (QB). However, depending on the topics covered by your domestic contract, you may have to go QB. For example, if you are dealing with property division, only QB can grant the consent order.

In addition, to get a consent order from PC, you must already have a court action started in PC. Therefore, if you do not already have an action started in PC, it may be easier to turn your agreement into a consent order in QB. In QB you will be permitted to “start” an action with the consent order.

Queen's Bench

Only the Court of Queen’s Bench can grant a divorce. If you plan on getting a divorce, it may be easier for you to deal with all aspects of your separation in the Court of Queen’s Bench. If you and your spouse agree to follow your domestic contract after separation, you can put the terms of your agreement into your QB “desk divorce” paperwork. This would turn those terms into a court order. For more information about “desk divorces,” see the Ending a Married Relationship under the Divorce Act Information Page.

Queen's Bench

For agreements that only deal with child support and/or partner/spousal support, there is the option to enter into a Maintenance Enforcement Support Agreement (MESA). Having a MESA is one way of making sure your support agreement will be enforced in the future. This is a specific kind of Agreement that has eligibility criteria, a mandatory template form, and required steps. These steps include having the MESA turned into a Queen’s Bench court order.

More information

For more information about MESAs, see the “Consent orders” sections of the following Information Pages:

To learn more about consent orders, see the “Consent orders” sections of the following Information Pages:

If you agree to change the terms you had agreed to in the domestic contract

Upon separation, you and your partner may decide that some terms in your domestic contract are no longer suitable. Together you can come to an agreement about what changes to make. It is a good idea to document those changes.

One easy option is to write out everything you have agreed to in a separation agreement. You would include the terms of the domestic contract that remain the same as well as any new things you are agreeing to. You will need to follow all of the rules about making separation agreements. For more information about these rules and other important things to consider, see the Coming to an Agreement on Your Own Information Page.

Once the separation agreement is complete, you can get a consent order to make sure the agreement is followed. For more information, see the “Enforcing your agreement” section above.

Out of court resolution options

You do not have to go to court to solve your family law issues. It is possible to agree. Although court is an option, it is merely one option in a range of possibilities.

You can agree on your own or with the help of a “third party.” A third party is a person who is not directly involved with the legal issue, but is connected to it in some other way. For example, professionals who work with families to sort through legal problems.

When attempting any out-of-court settlement, it is important that you understand the law about the issues that are relevant to you. For detailed information, see the following Information Pages:

Coming to an agreement on your own

The first out-of-court option is to come to an agreement on your own. This is sometimes called the “do-it-yourself” or the “kitchen table” option. Although this can work for many people, it does not work for all. In certain situations, such as in many cases of domestic violence, it may not be at all appropriate. For more information, see the Coming to an Agreement on Your Own Information Page.

Mediation

If you need a bit of help to resolve your issues, you can always use a mediator. In mediation, the decisions are still made by the parties. But they reach those decisions with the help of an independent and trained third party. The mediator does not take sides and does not make the decisions for you. For more information, see the Alternative Dispute Resolution Information Page.

Arbitration

Arbitration also involves the help of an independent and trained third party. However, the third party is hired to make a decision. In other words, the arbitrator hears both sides, reviews documents and evidence, and comes up with a binding decision. For more information, see the Alternative Dispute Resolution Information Page.

Negotiating through lawyers

“Negotiation” is a term used to describe any process where there is a “discussion” to resolve a disagreement or conflict. The goal of the discussion is to come to an agreement. This is different from simply “presenting sides” and having someone else make a decision for you. Coming to an agreement on your own and mediation are two forms of negotiation.

You can also negotiate though lawyers. In fact, many family law cases are solved in this way. The parties resolve their issues before ever getting in front of a judge by suggesting different solutions through their lawyers. Most lawyers will try to negotiate before they decide to take the case to court.

For more information, see the Alternative Dispute Resolution Information Page.

Collaborative Family Law

Collaborative Family Law is another way of working together. It has 2 key features:

  • each party hires a lawyer; and
  • the parties and the lawyers agree to resolve all matters without going to court or threatening to go to court.

For more information, see the Alternative Dispute Resolution Information Page.

Agreements resulting from out-of-court options

For any of these out-of-court options, the goal is to reach an agreement. This means that everyone involved will have worked out solutions for:

  • the issues you have now; and
  • how you will deal with future problems.

Keep in mind that making agreements can be tricky and complex. There are many things to consider. For more information on the process and requirements of making an agreement, as well as things to watch out for, see the Coming to an Agreement on Your Own Information Page.

Be Aware

Courthouse staff and Resolution and Court Administration Services cannot help with the drafting or completion of the agreement.

After you have an agreement, you may want to turn that agreement into a consent order. Having a court order makes it a little easier to enforce the agreement if you need to. See the “Enforcing your agreement” section above for more information.

Government programs to help avoid court (but they may become mandatory if you do go to court)

Alberta Courts has programs to help keep the family out of court, if possible. A family does not necessarily have to already be involved in a court action to use these resources. However, If you do end up taking these matters to court, some of these resources and processes could become MANDATORY.

The exact kind of help available can depend on the topics you are addressing, which court you are using (Provincial Court or the Court of Queen’s Bench), and your judicial centre.

For more information, see the Information Pages on each topic:

For specific information about programs in your area, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English
Going to court: Hiring a lawyer or representing yourself?

If you go to court, you can choose to either be represented by a lawyer, or to represent yourself. If you choose to represent yourself, you will be called a “self-represented litigant.”

Hiring a lawyer

If you hire a lawyer, your lawyer will explain to you what is happening with your case and why. A lawyer can help you reach an out-of-court agreement, or represent you in court.

However, even if you do have a lawyer, you may wish to continue reading this (and other Information Pages) to educate yourself further.

For more information about your options for legal representation and other legal help, see the Community Legal Resources & Legal Aid and Working with a Lawyer Information Pages.

Representing yourself

As a self-represented litigant, you can find some help at Resolution and Court Administration Services (RCAS). The exact kind of help available can depend on:

  • the topics you are addressing;
  • which court you are using (Provincial Court or the Court of Queen’s Bench); and
  • your judicial centre.

If you go to court, some RCAS services might be mandatory. This means that you must use those services. For specific information about court-related help available in your area, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

In some courthouses, you may have the option of speaking with “duty counsel.” Duty counsel are volunteer lawyers who will discuss your legal issue with you for free. This can include what the judge may think of your requests and the “merits of your claim.” There are no income restrictions to speak with duty counsel, but the service is limited. They are only at certain courthouses on certain days. Also, there may be many people waiting to speak with them. If you need to speak to duty counsel, make sure you get to the courthouse early. Check with your judicial centre to verify the times and days duty counsel will be available.

For information about what matters duty counsel can help with, and which judicial centres have duty counsel available, see the following resource.

Web Duty Counsel - Legal Assistance at Court
Legal Aid Alberta
English
Before you go to court: Get to know the court system

Before filing any documents, you will need to learn about the court process. It is not simple and there are many rules. If you represent yourself, you will need to follow the required processes and the rules.

Paying fees

When you start or respond to a court action, there is often a filing fee that must be paid. There can also be fees for additional applications related to your case. For a current list of fees and options if you can’t afford the fees, see the following resources.

Web Court fees
Government of Alberta
English

Web Waiving a filing fee
Government of Alberta
English

PDF Court Fees & Waivers in Alberta
Centre for Public Legal Education Alberta
English

Docket court

Provincial Court

 

Family court matters are not like you see on television. They do not usually go straight to trial. Instead, many matters are resolved in “docket court.” Docket court is where Provincial Court “pre-trial” hearings take place. These hearings are in courtrooms that are open to the public, where the judge hears a list of different cases by different people.

Judges in docket court can give various kinds of orders. For example, they can:

  • Make orders that deal with procedures and rules. For example, if you request an exception to a particular court rule. This means you are asking for permission to not follow that rule.
  • Make “interim orders.” Interim orders are “temporary” orders, meant to provide short-term solutions while the parties work out longer-term plans. Interim orders can be for a set period of time. Or they may have no set ending time.
  • Make “orders” about family law matters (such as issues about parenting time or partner support). These orders are generally not the final decision in a matter. Usually, a final decision comes only after trial. That decision is called a “judgment.” However, many parties choose to never go to trial. Instead they just accept the orders granted in applications as a permanent solution. They never go to trial and get a final “judgment.”

Some separating couples can resolve their issues in docket court. They move forward without ever needing to go to trial. Other parties need to go to trial to resolve their issues (sometimes all of their issues, sometimes only some of them).

For more information on the court process, including docket court, interim orders, and going to trial, see the Understanding the Court Process Information Page.

Chambers

Queen's Bench

 

Family court matters are not like you see on television. They do not usually go straight to trial. Instead, many matters are resolved in “chambers.” Chambers is where Queen’s Bench “pre-trial” hearings take place. These hearings are in courtrooms that are open to the public, where the judge hears a list of different cases by different people. Yours is one case on the list.

In family law, there are 2 kinds of chambers:

  • regular chambers (sometimes called “morning chambers”); and
  • special chambers (sometimes called “afternoon chambers”).

Regular chambers is meant for simpler matters that can be heard in 20 minutes (10 minutes for each party to present his or her case). Special chambers is for more complex matters that need more time. For more information about chambers, see the Understanding the Court Process Information Page.

Be Aware

The rules for regular chambers are very different than the rules for special chambers. For example: in special chambers, the parties must send in a specific document called a “confirming letter.” Also, there are very detailed and strict rules about scheduling, paperwork, and deadlines. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.



Judges in chambers can give various kinds of orders. For example, they can:
  • Make orders that deal with procedures and rules. For example, if you request an exception to a particular court rule. This means you are asking for permission to not follow that rule.
  • Make “interim orders.” Interim orders are “temporary” orders, meant to provide short-term solutions while the parties work out longer-term plans. Interim orders can be for a set period of time. Or they may have no set ending time.
  • Make “orders” about family law matters (such as issues about parenting time and partner support). These orders are generally not the final decision in a matter. Usually, a final decision comes only after trial. That decision is called a “judgment.” However, many parties choose to never go to trial. Instead they just accept the orders granted in applications as a permanent solution. They never go to trial and get a final “judgment.”

Some separating couples can resolve their issues in chambers. They move forward without ever needing to go to trial. Other couples need to go to trial to resolve their issues (sometimes all of their issues, sometimes only some of them).

For more information on the court process, including chambers, interim orders, and going to trial, see the Understanding the Court Process Information Page.

Queen’s Bench “Practice Notes”

Queen's Bench

 

“Practice Notes” are additional rules issued by the Court, often about court procedures. These rules apply only in the Court of Queen’s Bench (not in Provincial Court). These rules are not just for lawyers—you must follow them even if you are representing yourself. For a list of the Practice Notes about family law, see the following resource.
Web Court of Queen's Bench: Practice Notes
Government of Alberta
English
Click on the “Family” tab.

Scheduling hearings and giving notice to the other party

When you read about all of the paperwork that needs to be completed for hearings, you will learn that there are rules about:

  • how to schedule hearing dates; and
  • when you have to let the other party know about the application. This is called “giving notice.”

The court has these rules to make sure that everyone has enough time to prepare for court and no one is taken by surprise. This leads to fairer results.

Because of this, courts are quite strict about the rules. However, sometimes there are good reasons to not follow the rules. In such cases, you may want to ask for an “exception” to the rules. This means you are asking for permission to not follow the rules.

For example, it may be possible to:

  • get time limits shortened for giving notice to the other party (this is also called “abridging” the time); and
  • get court dates moved up to an earlier date.
Be Aware

These changes in the rules are for special situations. There must be a very good reason to request an exception. Also, if you ask for an exception, there are very specific steps that you must follow.

Also, in some cases it is possible to make an application without giving any notice to the other party. This is called making an “ex parte” application. For example, this can happen:

  • if you cannot find the other party, or
  • when your safety (or your children’s safety) may be at risk if you give the other party notice ahead of time.

For information about whether you can ask for any of these exceptions, contact the court in your judicial centre, or ask at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English
Challenging your domestic contract in court

If you have reached the point where your issues about your domestic contract cannot be resolved out of court, either you or your former partner can challenge the domestic contract in court.

You do not have to start a separate court action to challenge the validity of your domestic contract. Instead, you can simply make an application to the Court for what you want. This is also called the “remedy” that you are asking for, and includes things like child support and partner support.

If you apply to court:

  • You can let the Court know that you have a domestic contract that you are challenging. You would do this in your Claim form (if you are in Provincial Court) or Application form (if you are in the Court of Queen’s Bench).
  • You can also provide the relevant facts to support this challenge. You would do this in your Statements (if you are in Provincial Court) or Affidavits (if you are in the Court of Queen’s Bench).

For example:

  • Alex and Pat have a cohabitation agreement that says that neither will pay partner support to the other.
  • Pat wants this agreement set aside and wants to ask for partner support.
  • Pat can make an application for partner support. The court must be told about the cohabitation agreement. The affidavit must say that the application includes a request to set aside the clause that says that no partner support will be paid by either party.
  • The issue of setting aside the agreement can then be dealt with first in court.
  • If the judge decides to set aside that part of the agreement, the rest of the partner support application could be heard.
  • Or, the judge may decide that the issue needs to be addressed in a trial, and the matter will be rescheduled.
Be Aware

This is a very complex area of law. You may wish to consult a lawyer before attempting to have a domestic contract set aside. For more information, see the Working with a Lawyer Information Page.

As explained above, dealing with a conflict about a domestic contract in court involves applying for the “remedy” you want. Or, you may be responding to such an application. In either case, you will need to understand the processes for the topics you are dealing with in court. This will include:

  • completing the initial paperwork;
  • responding to paperwork;
  • filing and serving the paperwork; and
  • appearing at the hearing.

For more information, see the Information Pages on each topic.

Remember

In many cases, when making an application, parties have to choose a court (Provincial Court or the Court of Queen’s Bench). Only the Court of Queen’s Bench can hear matters under the Divorce Act. Either court can hear matters under the Family Law Act. If you were married, you have a choice about which law you want to use. 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.

Queen's Bench

If the issue is related to the division of property, you will have to choose the Court of Queen’s Bench, as only QB can hear applications about property division. For more information, see the Property Division for Married Spouses Information Page or the Property Division for Unmarried Couples Information Page.

Provincial Court

Queen's Bench

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