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{{JP Boyd on Family Law TOC}}
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.
==Introduction==
The usual point of agreements like these is to set the rules on say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The odd weird thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that may might happen in a year, in five years or in twenty years, or it may never happen, and it . It can be very difficult if not impossible to figure out make plans based on what the family's personal and financial circumstances might be like at some unknown point in the future when the relationship ends.
Married spouses and unmarried people couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a settlement contract that describes how some or all of the legal issues that crop up when a arising from the end of the relationship has endedhave been resolved.
All of these different kinds of agreement are legal contracts which set out 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 set aside the order and make an order that is on different than what the parties agreed to in their agreement. (The court's authority to poke into private agreements comes from the fact that the court always has the jurisdiction to make orders under the Family Relations Act or the Divorce Act, no matter what arrangement the parties have made between themselvesterms.)
#set aside part of an agreement, without changing the circumstances rest of a party or the children changed significantly since the agreement was executed;#the agreement is incorporate all or becomes unfair;#a party failed to make full disclosure part of his or her financial circumstances at the time the an agreement was being negotiatedinto an order; or,#the circumstances in which the parties entered into the make an order replacing all or part of an agreement were unfair.
==The Role of Family Law Agreements==
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 preferable 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 into 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 make use of be far more creative terms that cannot be had through in resolving a problem than a court orderever could be.
===Marriage and Cohabitation Agreements===
Marriage agreements and cohabitation agreements usually set out talk about what will happen if the parties' relationship breaks down, although they can sometimes specify address how certain issues things will be dealt with 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 Relations 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 signficant significant debts, or expect to receive significant assets during the marriagerelationship. A young couple who have no significant assets and no children don't necessarily have any particular need to execute sign a marriage agreement or a cohabitation agreement.
====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 blue purple shirts on Thursdays, to doing the houseworkhousehold 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 common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionate proportionately to the parties' incomes?
*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 each partiesparty' 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.
====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 certainly also deal with custody of children and access, the payment or non-payment of spousal support, and the payment of child support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. It can be hard to plan ahead Agreements about the care of time what ought to happen if there are kids and whether spousal support will need to be paid. In children or the time between the execution payment of an agreement and the time a relationship finally breaks down, the parties' individual circumstances may change in entirely unforeseen ways. It is virtually impossible to predict what a couple's financial, emotional and family situation might be on the date that their relationship breaks down, child support are only binding if that in fact happens at all. Even the Amazing Kreskin would have a tough time with this one. As a result of this uncertainty, marriage agreements and cohabitation agreements they are more likely to be varied by the court than made after separation agreements, particularly or when the couple's circumstances have changed in ways not predicted by their agreement or expected by the parties. Marriage and cohabitation agreements that deal with property have one hidden problem that sometimes makes them inappropriate: Under s. 68 of the Family Relations Act, the court is authorized to vary a marriage agreement under s. 65 of the act, if the terms of the agreement are about property are unfair.Under s. 120.1, the court can assess a cohabitation agreement for fairness and vary it under s. 65, using the standard of fairness that applies to married couples. Without a cohabitation agreement, the Family Relations Act wouldn't apply to property disputes between unmarried people.In other words, sometimes the act of making an agreement dealing with property can invoke the jurisdiction of the court, even though that may be precisely what the parties meant to avoid. More information about the division of property between married and unmarried couples can be found in the Family Assets > Dividing Assets chapterseparate.
===Separation Agreements===
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?*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?*Should a party receive spousal support? If so, how much support should be paid and for how long?*How will the family property be divided? Should the parties' assets excluded property be divided?*How will the parties' debts family debt be paid? Should they be allocated between the partiesdivided?
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 valid and binding from the moment they are executed 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 continues may continue to be legally binding between on them.
==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 executed 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: 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.)
==Further Reading in this Chapter==
Return to the <span style="color: red;">first page</span> in this chapter.
* other chapters