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Is it allowed and legally possible to separate with the spouses waiving their right to family patrimony. Meaning after mutual agreement and having received Independent Legal Advice, the property is not divided and rather one spouse keeps the house (without buyout or any other payment to the other spouse), and each spouse keep their RRSP and debts. Is such agreement legally possible or does the law enforces division even if both parts agree to have a different and uneven division of assets.
Parties can make their own contract but should observe the requirements of the Family Property Act for documentation of the deal. Also, an independent lawyer is unlikely to recommend a contract if it appears unconscionable. Unequal division of family property is quite common for all kinds of reasons but they need to be good reasons and documented in the Agreement.
114 months ago
Dawn Nelson - Dawn L. Nelson, Barrister & Solicitor (Edmonton) Verified Lawyer
Just to clarify, Part 3 section 37 and 38 of the Family Property Act speak to spouses making their own deal. As Anonymous said, there are formal requirements to be met to make it a binding contract and an enforceable deal. Basically, the way I paraphrase it is "you are allowed to make a bad deal, so long as you know you are making a bad deal."
Full and transparent disclosure is a must. If anyone is hiding anything, the deal can be overturned by the Court. If it is a supremely bad deal and it looks like one party was bullied into signing it, then it can be overturned by the Court. However, if it is a somewhat uneven deal, but the people involved are prioritizing being done and moving on with their separate lives instead of prolonged fighting, then that will generally be okay. Sometimes the peace gained by walking away is worth more than money.
114 months ago
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