Difference between revisions of "Family Law Agreements"

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a specific way and include specific terms.

===Entering into an Agreement===

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. In addition, the people entering into the agreement must be able to understand the agreement, be capable of entering into it and enter into it voluntarily. This is what s. 93(3) says on this issue:

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

The legal formalities common to all family agreements are these:

The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)

The parties must be over the age of majority, and cannot be under any other form of legal disability such as insanity.

The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.

As a general rule, each party who enters into a family law agreement should get independent legal advice about:

what the agreement means;

what rights and obligations the agreement gives each party;

how the agreement does or does not limit the other legal remedies each party may have outside the agreement;

how the agreement may affect each party over the short- and long-term; and,

the options and remedies that would have been available had the parties chosen to litigate the issues settled in the agreement.

Each party should find their own separate lawyer and meet with the lawyer to review the draft agreement. This process is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact on him or her.

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language does not mean that an agreement using different wording will not be valid because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair, the courts will usually uphold the agreement.

There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at your local courthouse law library; one of the very best is the Family Law Agreements Manual published by the Continuing Legal Education Society.

The following are the typical elements of a family agreement, using the example of John and Jane Doe, a fictitious married couple entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

Also known as the exordium, this portion of an agreement identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

 

BETWEEN:

Jane Doe

of 123 King Street, Anytown, British Columbia

("Jane")

AND

John Doe

of 456 Queen Street, Anytown, British Columbia

("John")