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{{JP Boyd on Family Law TOC|expanded = agreements}} | {{JP Boyd on Family Law TOC|expanded = agreements}} | ||
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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. | 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. | ||
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Potential unfairness, then, can come from: | Potential unfairness, then, can come from: | ||
*exploiting a party's emotional or psychological vulnerability, | |||
*influence over a party through dominance and oppression, | |||
*control over the family finances, | |||
*influence over the children's allegiances, or | |||
*access to or control over the release of financial information. | |||
Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help: | Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help: | ||
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*'''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'' talks 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. | *'''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'' talks 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 | ===The tests under the ''Family Law Act''=== | ||
Unfairness is a key element of the tests under the ''Family Law Act'' to set aside the parts of agreements about the division of property and debt and about spousal support as we saw under s. 93(3), reproduced above. | Unfairness is a key element of the tests under the ''[[Family Law Act]]'' to set aside the parts of agreements about the division of property and debt and about spousal support as we saw under s. 93(3), reproduced above. | ||
Under s. 44(4) of the act, the court can set aside the parts of agreements about parenting arrangements if the parenting arrangements are not in the best interests of the child: | Under s. 44(4) of the act, the court can set aside the parts of agreements about parenting arrangements if the parenting arrangements are not in the best interests of the child: | ||
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Section 150 is the part of the ''Family Law Act'' dealing with how child support is calculated. | Section 150 is the part of the ''Family Law Act'' dealing with how child support is calculated. | ||
==Drafting | ==Drafting considerations== | ||
First of all, it is always best to have a lawyer prepare any sort of contract, including family law agreements. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as: | First of all, it is always best to have a lawyer prepare any sort of contract, including family law agreements. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as: | ||
*income tax consequences, | |||
*the transfer of property, | |||
*dividing property located outside of British Columbia, or, | |||
*liabilities to third parties and creditors. | |||
If you can't hire a lawyer, here are a few things you will want to keep in mind. | If you can't hire a lawyer, here are a few things you will want to keep in mind. | ||
===Don't | ===Don't use "legalese"=== | ||
Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" 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. | Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" 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. | ||
===Be as | ===Be as clear as possible=== | ||
Ask yourself these questions: | Ask yourself these questions: | ||
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Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel." | Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel." | ||
===Avoid | ===Avoid agreeing to agree=== | ||
An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible. | An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible. | ||
===Remember the | ===Remember the loose ends=== | ||
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 proceeds be dealt with? These things should all be specified, where at all possible. | 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 proceeds be dealt with? These things should all be specified, where at all possible. | ||
===Be | ===Be realistic=== | ||
You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are obligations that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical. | You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are obligations that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical. | ||
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Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time. | Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time. | ||
===Use | ===Use sample clauses with caution=== | ||
Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful. | Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful. | ||
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==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
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* other chapters | * other chapters | ||
END HIDDEN---> | |||
==Page | ==Page resources and links== | ||
===Legislation=== | ===Legislation=== | ||
*''[Family Law Act]]'' | |||
*''[[Divorce Act]]'' | |||
===Links=== | ===Links=== | ||
* | * [http://www.familylaw.lss.bc.ca/resources/fact_sheets/makingAnAgmtAfterYouSeparate.php Legal Services Society's Family Law Website: Fact sheet on making an agreement after separation] | ||
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