1,399
edits
Difference between revisions of "Dividing Property and Debt in Family Law Matters"
From Clicklaw Wikibooks
Dividing Property and Debt in Family Law Matters (view source)
Revision as of 20:02, 27 June 2019
, 20:02, 27 June 2019→Asking the court to set aside an agreement
| Line 380: | Line 380: | ||
===Asking the court to set aside an agreement=== | ===Asking the court to set aside an agreement=== | ||
Section 94(2) says that the court cannot make an order dividing property or debt in the face of a written and witnessed agreement on property and debt until it has set aside those parts of the agreement. As a result, if a spouse is unhappy with the terms of a separation agreement on property or debt, the spouse must first ask the court to set aside the agreement and second ask for an order about the division of property and debt. | Section 94(2) says that the court cannot make an order dividing property or debt in the face of a written and witnessed agreement on property and debt until it has set aside those parts of the agreement. As a result, if a spouse is unhappy with the terms of a separation agreement on property or debt, the spouse must first ask the court to set aside the agreement and second, ask for an order about the division of property and debt. | ||
====Family law agreements and contract law==== | ====Family law agreements and contract law==== | ||
| Line 397: | Line 397: | ||
====Agreements on property and debt and the ''Family Law Act''==== | ====Agreements on property and debt and the ''Family Law Act''==== | ||
The ''[[Family Law Act]]'' provides two tests to help the court decide when an agreement on property and debt should be set aside. Under the first test, at s. 93(3), the court must look at the situation of the parties when they were negotiating and executing the agreement. The court is required to consider whether | The ''[[Family Law Act]]'' provides two tests to help the court decide when an agreement on property and debt should be set aside. Under the first test, at s. 93(3), the court must look at the situation of the parties when they were negotiating and executing the agreement. The court is required to consider whether the following circumstances existed when the parties were making their agreement: | ||
<blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote> | <blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote> | ||
| Line 408: | Line 408: | ||
Now, even if there are problems with an agreement under s. 93(3), the court can still decide not to set aside the agreement if "it would not replace the agreement with an order that is substantially different from the terms set out in the agreement" under s. 93(4). In other words, if the court wouldn't make a different order than the arrangements the parties agreed to, it might just leave the agreement alone. | Now, even if there are problems with an agreement under s. 93(3), the court can still decide not to set aside the agreement if "it would not replace the agreement with an order that is substantially different from the terms set out in the agreement" under s. 93(4). In other words, if the court wouldn't make a different order than the arrangements the parties agreed to, it might just leave the agreement alone. | ||
If there are no problems under s. 93(3), the second test, at s. 93(5), allows the court to set aside agreements that are "significantly unfair" taking into <span class="noglossary">account</span>: | If there are no problems under s. 93(3), the second test, at s. 93(5), allows the court to set aside agreements that are "significantly unfair", taking into <span class="noglossary">account</span>: | ||
<blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote> | <blockquote><tt>(a) the length of time that has passed since the agreement was made;</tt></blockquote> | ||
