Throughout my experience as a divorce lawyer, my observation has been that the average person in Alberta who is going through separation is not clear why they would need legal advice for a separation agreement. This article will educate you on what the Alberta law is when you have a separation agreement that sets out the division of property between you and your spouse.
When do you need a lawyer for your separation agreement?
When your separation agreement sets out a division of property between you and your spouse, you require a lawyer in Alberta to provide you with independent legal advice. Section 37 and 38 of the Family Property Act, RSA 2000, c F-4.7, and amendments thereto sets out the formal requirements for a legally enforceable agreement. Each spouse must receive independent legal advice with respect to the separation agreement.
- A Separation Agreement in Alberta that deals with property, requires you and your spouse to each need to retain your own lawyers.
- One lawyer cannot represent you both.
The Separation Agreement is NOT Filed With the Court
- The Separation Agreement is a binding agreement so long as you have met the requirements as set out in the Family Property Act of Alberta.
- The Separation Agreement is confidential and is not shared with anyone without your or your spouse’s consent.
What does an Alberta Family Lawyer have to do when providing you with legal advice?
- Your family law lawyer must review with you all your legal rights and entitlements as it applies to your situation; and be satisfied that you understand those rights & entitlements
- be satisfied that you are willing to sign the separation agreement freely and voluntarily
- you are not under undue influence or duress.
In further detail, the Alberta Court of Appeal outlines what a lawyer is obligated to review with a client when providing legal advice. The Alberta Court of Appeal states that a lawyer has the obligation:
“a) To obtain sufficient reliable information to be able to ascertain what the client would likely receive or be required to pay for spousal support, child support and matrimonial property division should the matter be resolved at trial, and to so advise the client;
(b) To give the client a description of options to any proposed settlement, an opinion on whether any proposed settlement is reasonable, and a discussion of the pros and cons of that settlement in comparison to the other options so that any decision to settle is an informed decision; and
(c) To tell a client who takes the position that he or she wants to settle without having received full information from the other side, that they may therefore be accepting less or paying more than what would be required according to law, and to provide to that client an assessment of the impact of the risk, including estimates of the value of what might be lost or paid above what was necessary, to the extent possible, on the basis of the information then available. A prudent solicitor would put this advice in writing to avoid later allegations of misunderstanding.”
What type of disclosure is an Alberta lawyer required to review with you as part of their provision of legal advice to you?
Every family situation and family property constellation is different, and therefore the disclosure exchange that a lawyer must discuss with you is not one size fits all. As a starting point, your lawyer should be discussing with you the Form Fl-17 of the Alberta Rules of Court  which is a standard form of disclosure. If I have a client that is well educated and informed about their own assets and their spouse’s assets, my legal advice might be that the disclosure exchange may not include everything from the Form Fl-17. However, if I have a client who is not familiar with the family assets or their spouse’s assets, I have an obligation as their lawyer to ensure that the client receives enough disclosure so that they have a good understanding of how their property would be treated if it were divided pursuant to the terms of the Family Property Act of Alberta. In some instances, the disclosure that is required is greater than what the standard Form Fl-17 would indicate.
As a hypothetical example for this, if I have a client who has been married for 25 years to a stockbroker who has complicated finances, and that client has no idea of what the family assets are, I have an obligation to receive enough disclosure so that I can explain to my client how the property would be treated and divided under the Family Property Act. A proper valuation of the assets pursuant to the Family Property Act might require more disclosure than the Form Fl 17 would indicate.
When should you contact a family law lawyer in Alberta for legal advice?
Given the family lawyer’s obligation I have set out above, you should receive legal advice before you enter into a mediation or settlement discussions with your spouse. You should receive your lawyer’s recommendation regarding the disclosure they recommend you exchange prior to attending mediation. See common mistakes people make when it comes to a separation agreement .