Home & Property

Property Agreements

Spouses can make an agreement to divide all or some of their family property in whatever way they think is best. Property that is dealt with under an inter-spousal contract is exempt from distribution under The Family Law Act. However, there are certain requirements that must be met in order for the agreement to be recognized as an inter-spousal contract under the Act.

The Act specifies that an inter-spousal contract must be in writing and must be signed by each spouse in front of a witness. Each spouse must also get independent advice from their own lawyer before signing the agreement. Each spouse must then acknowledge in writing, apart from the other spouse, that they have received independent legal advice and that they understand the agreement and its effect on their rights.

When making an agreement it is critical that the parties understand how family property is dealt with under the Act so that they can decide what they want to change or clarify. Once made, courts will not interfere with property dealt with under an inter-spousal contract unless the agreement was grossly unfair and one-sided at the time it was made.

Without a valid interspousal agreement family property will be divided according to the Act. While agreements that do not comply with the requirements for an inter-spousal contract are not binding on the courts, they may still be considered and given whatever weight the court thinks reasonable.

In order to properly deal with some or all family property by agreement, full disclosure by both spouses is required. It is important for both spouses to have a complete picture of the family property and its value, including…

While debts are not considered family property under The Family Property Act they nonetheless form part of the big picture and must be factored into a property agreement. The Property Statement (QB Form 15-26B) that must be filed with the court for applications involving property can also act as a kind of worksheet for spouses who are considering drawing up an interspousal contract.

Once spouses have a clear picture of all their debts and assets they can decide how to divide them. Agreements should cover things such as…

This is not a complete list of things to include in an agreement. You will need to have a lawyer review your agreement.

Even if you can’t reach an agreement on the division of property you may be able to reach an agreement on the value of certain property with or without the assistance of professionals such as appraisers and accountants. This could simplify a court application for a division of property.