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Family Law Agreements (view source)
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}}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you 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 parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed. | }}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you 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 parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle how a relationship will be managed. | ||
This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and | This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also reviews the typical elements of a family law agreement and discusses some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself. | ||
The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]]. | The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation Agreements|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]]. | ||
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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 called 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. | People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also called 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. Under the ''Family Law Act'', most couples who live together for two years have the same rights on separation as couples who are married, so there is no significant difference between a marriage agreement and a cohabitation agreement. Many people make agreements that will be effective regardless of whether they are living together or married. | ||
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 is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be 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. | 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 or if one person dies during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not happen for five years or 20 years, or it may never happen at all. As a result, it can be 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 spouses, unmarried spouses and other 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. | Married spouses, unmarried spouses and other 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. | ||
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All of these different kinds of agreement are legal contracts that 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'' dealing with just the care of the children when their relationship has ended. | All of these different kinds of agreement are legal contracts that 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'' dealing with just the care of the children when their relationship has ended. | ||
Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed 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 was unfairly negotiated, is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms. | Despite the intentions of the couple when they signed an agreement, the terms of their agreement may still wind up being reviewed 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 was unfairly negotiated, is significantly unfair or becomes significantly unfair the court will generally be willing to look into things and perhaps set aside the agreement 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: | The ''[[Family Law Act]]'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this: | ||
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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 an agreement, you are under no legal obligation to do so. 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. | 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 an agreement, you are under no legal obligation to do so. 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. | ||
Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter 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. | Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter 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 or debts 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==== | ||
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*The parties can't be under any sort of legal disability such as insanity. | *The parties can't be under any sort of legal disability such as insanity. | ||
*The parties must both sign the agreement of their own free will, without unfair pressure by the other party. | *The parties must both sign the agreement of their own free will, without unfair pressure by the other party. | ||
*The agreement must be properly executed, which means being signed by the parties in the presence of at least one witness. | *The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement. | ||
As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from his or her own lawyer, before the agreement is signed about: | As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from his or her own lawyer, before the agreement is signed about: | ||
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<blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote> | <blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote> | ||
<blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote> | <blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote> | ||
<blockquote><tt>E. Jane and John have lived | <blockquote><tt>E. Jane and John have lived separate and apart since December 25th, 2012 (the "Date of Separation"), when Jane left the family home.</tt></blockquote> | ||
<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | <blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | ||
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The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this: | The operative clauses of an agreement are the nuts and bolts of the settlement. They are the essential terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this: | ||
<blockquote><tt> | <blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote> | ||
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | <blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | ||
<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote> | <blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote> | ||
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===The views of the court=== | ===The views of the court=== | ||
Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one | Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the court held that family law agreements should not be considered under exactly the same standards that are applied to ordinary commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one or both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, ''[http://canlii.ca/t/1w9mm Leopold v. Leopold]'', 2000 CanLII 22708 (ON SC): | ||
<blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote> | <blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote> | ||
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*'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | *'''Make full disclosure:''' Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | ||
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | *'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | ||
*'''Know the law:''' The ''Divorce Act'' and the ''Family Law Act'' say when and why spousal support and child support should be paid. The ''Divorce Act'' | *'''Know the law:''' The ''Divorce Act'' and the ''Family Law Act'' say when and why spousal support and child support should be paid. The ''Divorce Act'' and the ''Family Law Act'' talk about how much time children should have with their parents. For married spouses and unmarried spouses, the ''Family Law Act'' talks about how property and debt should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law. | ||
===The tests under the ''Family Law Act''=== | ===The tests under the ''Family Law Act''=== | ||
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{{REVIEWED | reviewer = | {{REVIEWED | reviewer = [[Beatrice McCutcheon]], February 22, 2017}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||