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Postnuptial Agreement

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Alberta

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Frequently Asked Questions

Can we create a Postnuptial Agreement if we are already married?Yes, Postnuptial Agreements (also called Marriage Agreements) are intended to be created after a couple is legally married (during the marriage). If you wish to create an agreement prior to marriage, use our Prenuptial Agreement.

However, the Postnuptial Agreement is not meant to be used if you are contemplating separation or divorce; in that case, you need to use our Separation Agreement. In some cases, creating a Postnuptial Agreement in contemplation of divorce could invalidate the Postnuptial Agreement.What is required in a Postnuptial Agreement?A Postnuptial Agreement is a type of contract, between spouses, and is treated as such by the court. The requirements of the postnuptial contract are that:

The Agreement was not obtained through fraud, duress, deceit, coercion, mistake or misrepresentation.
The spouses must make full economic disclosure and disclose all material facts.
The Agreement must not be "unconscionable", i.e. it must be fair and more or less equitable.

Your Postnuptial Agreement

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_______ _______ Page of

POSTNUPTIAL AGREEMENT

THIS POSTNUPTIAL AGREEMENT (the "Agreement") MADE ON THIS ________ day of ________________, ________

BETWEEN:

______________________
of _________________________

- AND -

______________________
of _________________________

BACKGROUND
This Agreement is made between ______________________ and ______________________ (collectively the "Parties" and individually a "Party") who are married to each other.
The Parties intend for this Agreement to become effective upon execution by both Parties.
The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
The Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Federal or Provincial legislation, will not apply to them.
The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
The Parties also acknowledge that they have had the opportunity to retain their own lawyer and to receive independent legal advice regarding the terms of this Agreement.
The Parties have disclosed to their satisfaction all assets and liabilities that each may have and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
Each Party agrees and affirms THAT:
1. The Parties did execute this Agreement voluntarily;
2. This Agreement was not unconscionable when it was executed;
3. Prior to execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;
4. They have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and
5. They entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.
The Parties acknowledge that this Agreement will continue upon termination of marriage whether by death, divorce, or otherwise.

NOW THEREFORE in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

PROPERTY
The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
All jointly acquired or jointly held property, however and whenever acquired, will remain the property of and be owned by both Parties and will be treated as shared property (the "Shared Property").
Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property") except where:
1. it is Shared Property; or
2. there is proof of shared legal ownership.
Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
DEBTS
The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts") except where:
1. it is Shared Debt; or
2. there is proof of shared legal responsibility.
FAMILY PROPERTY RELEASE
The Parties covenant and agree that they are aware of the provisions of the Family Property Act of Alberta, and that it is their intention that the provisions of the Family Property Act will not apply to the status, ownership, interest and division of their property, either jointly or separately owned, nor to their future property, whether real or personal, and owned by either one or both of them, and the Parties further covenant and agree that it is their desire and intent by the terms of this Agreement to contract out of the provisions of the Family Property Act, and to make a full and final settlement of all matters of property, both real and personal, previously and presently owned by either of the Parties or to be acquired by either of the Parties in the future.
DOWER RELEASE
Each Party releases all dower rights under the Dower Act of Alberta, or any other jurisdiction whatsoever, that, but for this Agreement, he or she would have in and to the property in the name of the other, or in their names jointly or as tenants in common.
SPOUSAL SUPPORT
In the event of a separation the Parties agree that spousal support may be payable to one of the Parties on the basis of the Party's financial circumstances at the time of separation or otherwise. It is understood and accepted by each Party that spousal support will be determined according to the appropriate Federal or Provincial laws.
ESTATES AND TESTAMENTARY DISPOSITION
Nothing in this Agreement will limit or affect any rights that each may acquire as spouse or surviving spouse in the property, assets or estate of the other spouse.
Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
SEVERABILITY
Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
INTENTION OF THE PARTIES
Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
DUTY OF GOOD FAITH
This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
FURTHER DOCUMENTATION
The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
TITLE/HEADINGS
The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
ENUREMENT
This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
GOVERNING LAW
The laws of the Province of Alberta will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
TERMINATION OR AMENDMENT
This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
ENTIRE AGREEMENT
The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.

IN WITNESS WHEREOF the Parties have hereunto set their hands and seals on the ________ day of ________________, ________.

SIGNED, SEALED AND DELIVERED
In the presence of:

_____________________________ Lawyer Printed Name: _________________	________________________ ______________________
_____________________________ Lawyer Printed Name: _________________	________________________ ______________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE PROVINCE OF ALBERTA

I, _________________________, of the City of ___________________, in the Province of Alberta, Barrister and Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Postnuptial Agreement, separate and apart from ______________________, as to his or her legal rights and liabilities under the terms and conditions of it, and that I acted solely for him or her, and explained fully to him or her the nature and effect of the said Postnuptial Agreement and he or she did execute it in my presence, and did acknowledge and declare that he or she was executing it of his or her own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in The Province of Alberta, this _____ day of _________, 20___.

________________________
BARRISTER & SOLICITOR
Print Name: _________________

I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.

________________________
______________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE PROVINCE OF ALBERTA

I, _________________________, of the City of ___________________, in The Province of Alberta, Barrister and Solicitor, DO HEREBY CERTIFY:

DATED at the City of ___________________, in The Province of Alberta, this _____ day of _________, 20___.

________________________
BARRISTER & SOLICITOR
Print Name: _________________

I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.

________________________
______________________

FAMILY PROPERTY ACT ACKNOWLEDGMENT
(Section 38)

I, ______________________, of the City of ____________, in the Province of Alberta, HEREBY ACKNOWLEDGE THAT:

I am executing this document separate and apart from ______________________.
I am aware of the nature and the effect of this Agreement.
I am aware of the possible future claims to property that I may have under the Family Property Act of the Province of Alberta, and that I intend to give up the claims I have under that Act to the extent necessary to give effect to this Agreement.
I am executing this Agreement freely and voluntarily without any compulsion on the part of ______________________.

_______________________
______________________

CERTIFICATE OF ACKNOWLEDGMENT

I, ________________________________________, of the City of ____________________________ in the Province of Alberta, Barrister and Solicitor, DO HEREBY CERTIFY THAT:

I am acting on behalf of ______________________.
He or she is aware of the nature and the effect of this document.
He or she acknowledged to me that he or she is aware of the possible future claims to property that he or she may have under the Family Property Act and he or she intends to give up these claims to the extent necessary to give effect to this Agreement and that he or she is executing the Agreement freely and voluntarily without any compulsion on the part of ______________________.

______________________
Print Name:_____________
Barrister and Solicitor

FAMILY PROPERTY ACT ACKNOWLEDGMENT
(Section 38)

I, ______________________, of the City of ____________, in the Province of Alberta, HEREBY ACKNOWLEDGE THAT:

I am executing this document separate and apart from ______________________.
I am aware of the nature and the effect of this Agreement.
I am aware of the possible future claims to property that I may have under the Family Property Act of the Province of Alberta, and that I intend to give up the claims I have under that Act to the extent necessary to give effect to this Agreement.
I am executing this Agreement freely and voluntarily without any compulsion on the part of ______________________.

_______________________
______________________

CERTIFICATE OF ACKNOWLEDGMENT

I, ________________________________________, of the City of ____________________________ in the Province of Alberta, Barrister and Solicitor, DO HEREBY CERTIFY THAT:

I am acting on behalf of ______________________.
He or she is aware of the nature and the effect of this document.
He or she acknowledged to me that he or she is aware of the possible future claims to property that he or she may have under the Family Property Act and he or she intends to give up these claims to the extent necessary to give effect to this Agreement and that he or she is executing the Agreement freely and voluntarily without any compulsion on the part of ______________________.

_____________________
Print Name:____________
Barrister and Solicitor

CERTIFICATE OF ACKNOWLEDGMENT BY SPOUSE
DOWER ACT

This document was acknowledged before me by ______________________ apart from ______________________.
He or she acknowledged to me that he or she:
1. is aware of the nature of the Agreement;
2. is aware that the Dower Act of the Province of Alberta gives him or her a life estate in the homestead and the right to prevent disposition of the homestead by withholding consent;
3. is consenting to this Agreement for the purpose of giving up the life estate and other dower rights in the homestead given to him or her by the Dower Act to the extent necessary to give effect to the said Agreement;
4. is executing the document freely and voluntarily without any compulsion on the part of ______________________.

DATED at the City of __________, in the Province of Alberta, this ____ day of _________, 20___.

________________________
Print Name: ____________
Barrister and Solicitor

CONSENT OF SPOUSE

I, ______________________, being married to the above named ______________________, do hereby give my consent to the disposition of our homestead, made in this Agreement and I have executed this document for the purpose of giving up my life estate and other dower rights in the said property given to me by the Dower Act of the Province of Alberta, to the extent necessary to give effect to the said disposition.

________________________
______________________

CERTIFICATE OF ACKNOWLEDGMENT BY SPOUSE
DOWER ACT

This document was acknowledged before me by ______________________ apart from ______________________.
He or she acknowledged to me that he or she:
1. is aware of the nature of the Agreement;
2. is aware that the Dower Act of the Province of Alberta gives him or her a life estate in the homestead and the right to prevent disposition of the homestead by withholding consent;
3. is consenting to this Agreement for the purpose of giving up the life estate and other dower rights in the homestead given to him or her by the Dower Act to the extent necessary to give effect to the said Agreement;
4. is executing the document freely and voluntarily without any compulsion on the part of ______________________.

DATED at the City of __________, in the Province of Alberta, this ____ day of _________, 20___.

________________________
Print Name: ____________
Barrister and Solicitor

CONSENT OF SPOUSE

________________________
______________________

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Your Postnuptial Agreement

What is a Postnuptial Agreement?

Does using a Postnuptial Agreement mean my marriage will eventually end?

Why are Postnuptial Agreements important?

What assets can I divide in a Postnuptial Agreement?

How do I create a Postnuptial Agreement?

1. Name and home address of each party

2. List of separate assets

3. List of shared assets

4. Division of shared assets

5. List of separate debts

6. List of shared debts

7. Division of shared debts

8. Information for dependent children

9. Spousal support terms

10. Terms for a surviving spouse’s inheritance

Is a Postnuptial Agreement legally binding?

When can I create a Postnuptial Agreement?

Is a court bound to spousal support terms in a Postnuptial Agreement?

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