Difference between revisions of "Family Law Agreements"
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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
A family law agreement is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed. | A family law agreement — usually a cohabitiation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed. | ||
This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself. | This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself. | ||
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==Introduction== | ==Introduction== | ||
People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also known as a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement. | |||
The usual point of agreements like these is to | The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The weird thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that might happen in five years or in twenty years, or it may never happen. It can be very difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends. | ||
Married and unmarried | Married spouses and unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved. | ||
All of these different kinds of agreement are legal contracts which | All of these different kinds of agreement are legal contracts which describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' just dealing with the care of the children when their relationship has ended. | ||
It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps make an order | It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the order and make an order on different terms. | ||
The ''Family Law Act'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this: | |||
<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote> | |||
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote> | |||
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote> | |||
Under s. 214, the court may: | |||
#the | #set aside part of an agreement, without changing the rest of the agreement; | ||
# | #incorporate all or part of an agreement into an order; or, | ||
#make an order replacing all or part of an agreement. | |||
# | |||
The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with your application. | |||
==The Role of Family Law Agreements== | ==The Role of Family Law Agreements== | ||
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The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute. | The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute. | ||
It is almost always | It is almost always better to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute since they can be tailored to suit the particular circumstances and needs of each party, and can be far more creative in resolving a problem than a court order ever could be. | ||
===Marriage and Cohabitation Agreements=== | ===Marriage and Cohabitation Agreements=== | ||
Marriage agreements and cohabitation agreements usually | Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes address how things will be handled during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together. | ||
It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the Divorce Act or the Family | It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the ''Divorce Act'' or the ''Family Law Act'' if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates. | ||
Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy), are coming into the relationship with children, are coming into the relationship with significant assets or | Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement. | ||
====During the Relationship==== | ====During the Relationship==== | ||
The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing | The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing purple shirts on Thursdays, to doing the household chores. Typically, however, people want to address issues like these: | ||
*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account? | *How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account? | ||
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared | *How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes? | ||
*How will unexpected expenses be paid for? | *How will unexpected expenses be paid for? | ||
*How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount? | *How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount? | ||
*How will each | *How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance? | ||
Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown. | Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown. | ||
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====After the Relationship==== | ====After the Relationship==== | ||
The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can | The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate. | ||
===Separation Agreements=== | ===Separation Agreements=== | ||
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Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues: | Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues: | ||
How will the children be cared for? | *How will the children be cared for? | ||
If the children will be living mostly with one parent, how much time with the children will the other parent have? | *If the children will be living mostly with one parent, how much time with the children will the other parent have? | ||
How much child support be paid, and which of the children's expenses will be shared between the parents? | *How much child support be paid, and which of the children's expenses will be shared between the parents? | ||
Should a party receive spousal support? If so, how much support should be paid and for how long? | *Should a party receive spousal support? If so, how much support should be paid and for how long? | ||
How will the parties' | *How will the family property be divided? Should the parties' excluded property be divided? | ||
How will the | *How will the family debt be divided? | ||
Separation agreements can cover everything that is an issue for a couple, even things that the court would not ordinarily deal with or be capable of dealing with. | Separation agreements can cover everything that is an issue for a couple, even things that the court would not ordinarily deal with or be capable of dealing with. | ||
Separation agreements are | Separation agreements are binding from the moment they are signed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement may continue to be legally binding on them. | ||
==The Elements of a Family Law Agreement== | ==The Elements of a Family Law Agreement== | ||
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 | 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=== | ===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. The legal formalities common to all family agreements are these: | |||
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: | |||
STOPPED | |||
(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; | |||
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable. | |||
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 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.) | ||
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==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
Return to the | Return to the first page in this chapter. | ||
* other chapters | * other chapters |