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Difference between revisions of "Dividing Property and Debt in Family Law Matters"
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Dividing Property and Debt in Family Law Matters (view source)
Revision as of 17:57, 29 March 2013
, 17:57, 29 March 2013→Separation Agreements for the Division of Property and Debt
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==Separation Agreements for the Division of Property and Debt== | ==Separation Agreements for the Division of Property and Debt== | ||
A separation agreement is contract which records a settlement of the issues which arise when a relationship ends. 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 action it when it's done. | |||
The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''Family Law Act'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. Although spouses are presumed to be each half responsible for any debt incurred during the relationship, you can make whatever other arrangements you want, as long as both spouses to those arrangements and they're reasonably fair. | |||
Uner s. 92: | |||
Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more the following: | |||
(a) divide family property or family debt, or both, and do so equally or unequally; | |||
(b) include as family property or family debt items of property or debt that would not otherwise be included; | |||
(c) exclude as family property or family debt items of property or debt that would otherwise be included; | |||
(d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt]. | |||
===Making a Valid Agreement=== | ===Making a Valid Agreement=== | ||
This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person. | |||
(2) For the purposes of subsection (1), the same person may witness each signature. | |||
(6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances. | |||
===The Effect of a Valid Agreement=== | |||
94 (1) The Supreme Court may make an order under this Division on application by a spouse. | |||
(2) The Supreme Court may not make an order respecting the division of property and family debt that is the subject of an agreement described in section 93 (1) [setting aside agreements respecting property division], unless all or part of the agreement is set aside under that section. | |||
===Asking the Court to Set Aside an Agreement=== | ===Asking the Court to Set Aside an Agreement=== | ||
(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. | |||
(4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement. | |||
(5) Despite subsection (3), the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following: | |||
(a) the length of time that has passed since the agreement was made; | |||
(b) the intention of the spouses, in making the agreement, to achieve certainty; | |||
(c) the degree to which the spouses relied on the terms of the agreement. | |||
(6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances. | |||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
