Difference between revisions of "Family Law Agreements"

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 test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the particular part of the agreement at issue. 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 setting aside agreements.

The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to his or her obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms.

*each person understands his or her legal rights and obligations, to know what's a good deal and what's a bad deal,

*each person is able to express his or her views and contribute to negotiating the agreement, and

*you have to make sure that the other party understands exactly what the agreement means and how it will affect his or her life, both now and in the future, and,

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:

Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact him or her. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement!

<blockquote><tt>2. Neither party will molest, annoy or harass the other or his or her friends, relatives and associates.</tt></blockquote>

The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address, and occupation.  The page with the parties' signatures should include at least one operative paragraph of the agreement.

The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that he or she saw the particular party sign the agreement, in case someone ever denies signing the agreement.

*influence over a party through dominance and oppression,

*control over the family finances,

*influence over the children's allegiances, or

*<span class="noglossary">access</span> to or control over the <span class="noglossary">release</span> of financial information.

*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.

*dividing property located outside of British Columbia, or,

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all <span class="noglossary">costs</span>, and try to use plain language to express the content of your agreement. Words like "issue" can have a particular legal meaning ― in this case first-generation, directly-descended heirs ― that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the list price be chosen? Under what conditions will the list price be reduced? Are there any repairs or improvements that need to be made, and if so who will do them and how will they be paid for? How will the sale proceeds be dealt with? What debts will be paid from the sale proceeds? These things should all be specified, where at all possible.