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Difference between revisions of "Divorce (3:IV)"
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→G. Separation Agreements
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A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom proceedings, and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the ''FLA'', the agreement is binding on the parties. | A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom proceedings, and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the ''FLA'', the agreement is binding on the parties. | ||
The overarching test for any | The overarching test for any agreements made regarding Part 4 of the ''FLA'' (guardianship, parenting arrangement contact) is the best interest of the child test in section 37 of the ''FLA''. | ||
A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division. | A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division. | ||
Section 85 of the FLA excludes the following from the division of family property: | Section 85 of the FLA excludes the following from the division of family property: | ||
* Property acquired by a spouse before the relationship between the spouses began; | |||
* Inheritances to a spouse; | * Inheritances to a spouse; | ||
* Gifts to a spouse from a third party; | * Gifts to a spouse from a third party; | ||
* A settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for | * A settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for | ||
** Loss to both spouses, or | |||
** Lost income of a spouse; | |||
* Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for | * Money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for | ||
** Loss to both spouses, or | |||
** Lost income of a spouse; | |||
* Property referred to in any of the paragraphs above that is held in trust for the benefit of a spouse; | * Property referred to in any of the paragraphs above that is held in trust for the benefit of a spouse; | ||
* A spouse's beneficial interest in property held in a discretionary trust | * A spouse's beneficial interest in property held in a discretionary trust | ||
** To which the spouse did not contribute, and | |||
** That is settled by a person other than the spouse; | |||
* Property derived from property or the disposition of property referred to in any of the above paragraphs. | * Property derived from property or the disposition of property referred to in any of the above paragraphs. | ||
Each spouse must be aware of the potential influence of any agreement on future expectations, and the legal implications of the agreement on questions of ownership and title in family property. Each spouse should have independent legal advice, even in cases where the parties seem to be in agreement on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting and it may be possible to overturn the contract. | |||
It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the ''FLA'' that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the ''FLA''. | It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the ''FLA'' that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the ''FLA''. | ||
