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Difference between revisions of "Agreements after Separation"
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Agreements after Separation (view source)
Revision as of 03:38, 16 April 2013
, 03:38, 16 April 2013→Formal requirements of separation agreements
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==Formal requirements of separation agreements== | ==Formal requirements of separation agreements== | ||
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 | 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 it if it is attacked. A separation agreement must therefore conform to certain basic rules, including these: | 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 it if it is attacked. | ||
A separation agreement must therefore conform to certain basic rules, including these: | |||
*A separation agreement must be set out in writing. | *A separation agreement must be set out in writing. | ||
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*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter. | *The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter. | ||
*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 | *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 be interpreted 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. | ||
*If a term of a | *If a term of a separation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties. | ||
Family law agreements are also subject to other | 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. | ||
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*While the parties can 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 agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force. | ||
Note that the courts will rarely if ever uphold an agreement | Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement that says a person will never have to pay child support. | ||
==The possible subjects of a separation agreement== | ==The possible subjects of a separation agreement== | ||
