A cohabitation agreement in Alberta is the written agreement unmarried partners make about property - what each of them owns, what is shared, and how it is divided if they separate - under the Family Property Act (Alberta).
Alberta's Family Property Act applies to adult interdependent partners, who may apply for a family property order. The Act was renamed and amended on January 1, 2020 and extended to them then. It was not replaced and it was not repealed.
That change is what makes the agreement worth having. Property acquired after the relationship of interdependence began, and not exempt, is divided equally unless that would not be just and equitable. Property acquired before that relationship began is an exempt category.
Whether two people hold the status of adult interdependent partner is a separate question with its own tests, and it is worth settling before either of you relies on an agreement.
Those tests are set out under common-law separation in Alberta.
A cohabitation agreement lets the two of you set your own terms for that property instead, and it is one of the family agreements Alberta couples make.
01 It sets out the status, ownership and division of the property it covers, and where it is enforceable the Act's own division does not apply to that property.
It has to be in writing, and each person has to make a written acknowledgement, separately from the other, in front of a lawyer who is not the other person's.
02 This is a different document under a different Act, and its job is to establish the status itself.
It is one of the three routes into being an adult interdependent partner, and for two people related to each other by blood or adoption it is the only route.
It is made in the form set out in the regulation - a short prescribed form recording that each person is 16 or older, that neither is already married or party to another such agreement, and that they are living or intend to live together in a relationship of interdependence, signed by each of them in front of two witnesses.
It expires when the parties become former adult interdependent partners, which the form itself states.
The two are not interchangeable. Which one a couple needs, or whether one document can do both jobs, is a question for a lawyer.
The Family Property Act (Alberta) sets out formal requirements for an agreement of this kind. They are about how the agreement is made, not only about what it says.
The Act deals with a subsisting written agreement that provides for the status, ownership and division of the property it covers.
Each of you acknowledges that you are aware of the nature and the effect of the agreement, that you are aware of the possible future claims to property you may have under the Act and intend to give them up to the extent the agreement requires, and that you are entering into it freely and voluntarily without compulsion by the other.
That is the requirement people know as independent legal advice.
independent legal advice for family agreements›
Those requirements are what the Act sets out. How an agreement was made is a separate question from them, and it is one to put to your own lawyer. What each of you knew about the other's property when the agreement was made belongs to that separate question.
How property is divided if the relationship ends; how exempt property is treated; responsibility for debts; and a business interest.
Parenting time and decision-making responsibility, or child support. Parenting is decided under the Family Law Act (Alberta) on the best interests of the child, and child support is calculated under the guidelines on the child's circumstances.
The Act treats several kinds of property as exempt, such as a gift from a third party, an inheritance, or property one of you acquired before the relationship of interdependence began. Which property is exempt in Alberta, and what keeping an exemption takes, is set out in full in the exempt property guide.
exempt property in Alberta›Partner support is a claim of its own and is dealt with separately.
Without an agreement, the Family Property Act's own division applies to the property it covers. An agreement is how the two of you set different terms for that property in advance, while you agree on them.
A family lawyer in Calgary advises each person on what the Act would otherwise do with their property, drafts the agreement or reviews one drafted by the other person's lawyer, and takes the acknowledgement the Act requires.
Nne Christiana Udo is the family lawyer at THEBIL Law and a member of the Law Society of Alberta. She advises clients on Alberta family law and prepares and reviews family agreements.
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Contact THEBIL Law to discuss a cohabitation agreement and the questions you want to address.
Send a consultation request at any time, or call 403-457-3128 during office hours. After you send the form, the office contacts you to arrange a meeting.
