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Difference between revisions of "Agreements after Separation"
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| resourcetype = <br/>more resources dealing with<br/> | | resourcetype = <br/>more resources dealing with<br/> | ||
|link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements] | |link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements] | ||
}}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over. | }}A separation agreement is a contract that records a settlement of the issues that arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements, which are made when a relationship starts, separation agreements are made when the relationship is over. | ||
Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into <span class="noglossary">action</span> when it's done. | Separation agreements can be an effective and inexpensive way of settling things. However, the terms of the agreement must be fair, and the parties must be able to get along well enough to negotiate the deal and then put it into <span class="noglossary">action</span> when it's done. | ||
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Every separating couple has three options to resolve the legal issues between them: | Every separating couple has three options to resolve the legal issues between them: | ||
*settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative settlement processes, | |||
*have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process, or | |||
*give up and just walk away from the mess. | |||
Where possible, it is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process. | Where possible, it is almost always better to negotiate and settle a dispute than to begin a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process. | ||
A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make. | A couple can reach a settlement at any time, even after a court proceeding has started. Typically, a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make. | ||
Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education <span class="noglossary">costs</span> will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple. | Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education <span class="noglossary">costs</span> will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple. | ||
Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual <span class="noglossary">trust</span> and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible. | Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual <span class="noglossary">trust</span> and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy, or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible. | ||
==Alternatives to separation agreements== | ==Alternatives to separation agreements== | ||
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Minutes of settlement should: | Minutes of settlement should: | ||
*be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary, | |||
*deal with each significant issue in a final manner, and | |||
*be attached to the draft consent order submitted to the court for its approval. | |||
====Consent orders==== | ====Consent orders==== | ||
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Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons: | Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice on how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons: | ||
*If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding. | |||
*You must understand the obligations and rights you have under the agreement. | |||
*It stops either party from claiming, later on, that they didn't know what the agreement meant or that they were at a disadvantage because the other party's lawyer drafted the agreement. | |||
After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement | After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement themselves. | ||
Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement." | Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement." | ||
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===If you are negotiating an agreement and have a lawyer=== | ===If you are negotiating an agreement and have a lawyer=== | ||
Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say. | Even if you have a lawyer, it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say. | ||
Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one. | Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one. | ||
Call your lawyer before you sign or initial anything. This is what you're paying | Call your lawyer before you sign or initial anything. This is what you're paying them for. | ||
==Formal requirements of separation agreements== | ==Formal requirements of separation agreements== | ||
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A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts. | A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues that are also discussed in the ''[[Family Law Act]]'' and the ''[[Divorce Act]]''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts. | ||
The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked. | The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able to withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold the agreement if it is attacked. | ||
A separation agreement must therefore conform to certain basic rules, including these: | A separation agreement must therefore conform to certain basic rules, including these: | ||
*A separation agreement must be in writing. | *A separation agreement must be in writing. | ||
*The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because | *The agreement must be signed by each party, and should be signed in the presence of a witness. Although an agreement made without a witness can still be valid and binding, it is a very good idea to have a witness (or witnesses) because they can confirm that the parties signed the agreement. In addition, sections 94 and 165 of the ''[[Family Law Act]]'' provide that a court cannot make an order about division of property and debt or spousal support that has been dealt with in a written, witnessed agreement between the parties unless the court has set aside the agreement. | ||
*Neither party should be under a legal disability at the time the agreement is signed, | *Neither party should be under a legal disability at the time the agreement is signed; however, children who are parents or spouses may enter into a binding agreement. | ||
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another. | *The agreement must clearly identify the parties and the nature of their rights and obligations to one another. | ||
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*Both parties must make full and complete disclosure of their circumstances going into the agreement. | *Both parties must make full and complete disclosure of their circumstances going into the agreement. | ||
*The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law. | *The parties cannot make an illegal bargain, that is, they can't make an agreement that obliges them to do something against the law. | ||
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer. | *Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may at some point in the future be interpreted by the court in favour of the party who didn't have the lawyer. | ||
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void. | *The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void. | ||
Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts: | Family law agreements are also subject to other principles that don't necessarily apply to commercial contracts: | ||
*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement. | *The parties must make full, complete, and honest disclosure of their financial circumstances going into the agreement. | ||
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties. | *If one term of a separation agreement is void, then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties. | ||
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement | *A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement; that is, you can't say the whole agreement has been broken because the other party didn't do something they were supposed to do. | ||
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force. | *While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force. | ||
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Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with their child isn't a guardian unless the parent "regularly cares" for the child. | Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with their child isn't a guardian unless the parent "regularly cares" for the child. | ||
Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way | Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement. | ||
====Parental responsibilities==== | ====Parental responsibilities==== | ||