Difference between revisions of "Family Law Agreements"

A family law 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.

Spouses who enter into a family law agreement when they marry or plan to marry are entering into a marriage agreement, also known as a pre-nuptial agreement. Unmarried couples who enter into an agreement when they start living together or plan on living together are entering into a cohabitation agreement, also called a living-together agreement.

The usual point of agreements like these is to set the rules on what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The odd thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that may happen in a year, in five years or in twenty years, or it may never happen, and it can be very difficult if not impossible to figure out what the family's personal and financial circumstances might be like at some unknown point in the future when the relationship ends.

Married and unmarried people who enter into an agreement after their relationship has broken down are entering into a separation agreement. A separation agreement is a settlement of the legal issues that crop up when a relationship has ended.

All of these different kinds of agreement are legal contracts which set out the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with.

It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps make an order that is different than what the parties agreed to in their agreement. (The court's authority to poke into private agreements comes from the fact that the court always has the jurisdiction to make orders under the Family Relations Act or the Divorce Act, no matter what arrangement the parties have made between themselves.)

Marriage agreements and cohabitation agreements can be changed by the court on the breakdown of the relationship, if the court considers the agreement to be unfair in light of such things as:

#the length of the relationship;

#the current economic needs of the parties;

#which party contributed what to the relationship;

#the fundamental fairness or unfairness of the agreement;

#a party failed to make full disclosure of his or her financial circumstances at the time the agreement was being negotiated; or,

#the circumstances in which the parties entered into the agreement were unfair.

Separation agreements can be changed by the court if, for example:

#the circumstances of a party or the children changed significantly since the agreement was executed;

#the agreement is or becomes unfair;

#a party failed to make full disclosure of his or her financial circumstances at the time the agreement was being negotiated; or,

#the circumstances in which the parties entered into the agreement were unfair.

Neither of these lists are exhaustive. There are all sorts of other reasons why a court might meddle with an agreement; whether the court will or won't depends entirely on the particular circumstances of the parties, the nature and terms of their agreement, and the nature of the complaints either party has with the agreement.

It is almost always preferable to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other into the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute, since they can be tailored to suit the particular circumstances and needs of each party and can make use of creative terms that cannot be had through a court order.

Marriage agreements and cohabitation agreements usually set out what will happen if the parties' relationship breaks down, although they can sometimes specify how certain issues will be dealt with during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the Divorce Act or the Family Relations Act if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy), are coming into the relationship with children, are coming into the relationship with significant assets or signficant debts, or expect to receive significant assets during the marriage. A young couple who have no assets and no children don't necessarily have any particular need to execute a marriage agreement or a cohabitation agreement.

The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing blue shirts on Thursdays, to doing the housework. Typically, however, people want to address issues like these:

*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionate to the parties' incomes?

*How will each parties' income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can certainly deal with custody of children and access, the payment or non-payment of spousal support, and the payment of child support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. It can be hard to plan ahead of time what ought to happen if there are kids and whether spousal support will need to be paid. In the time between the execution of an agreement and the time a relationship finally breaks down, the parties' individual circumstances may change in entirely unforeseen ways. It is virtually impossible to predict what a couple's financial, emotional and family situation might be on the date that their relationship breaks down, if that in fact happens at all. Even the Amazing Kreskin would have a tough time with this one.

 

As a result of this uncertainty, marriage agreements and cohabitation agreements are more likely to be varied by the court than separation agreements, particularly when the couple's circumstances have changed in ways not predicted by their agreement or expected by the parties.

 

 

Under s. 68 of the Family Relations Act, the court is authorized to vary a marriage agreement under s. 65 of the act, if the terms of the agreement about property are unfair.

Under s. 120.1, the court can assess a cohabitation agreement for fairness and vary it under s. 65, using the standard of fairness that applies to married couples. Without a cohabitation agreement, the Family Relations Act wouldn't apply to property disputes between unmarried people.

In other words, sometimes the act of making an agreement dealing with property can invoke the jurisdiction of the court, even though that may be precisely what the parties meant to avoid. More information about the division of property between married and unmarried couples can be found in the Family Assets > Dividing Assets chapter.

How will the children be cared for?

If the children will be living mostly with one parent, how much time with the children will the other parent have?

How much child support be paid, and which of the children's expenses will be shared between the parents?

Should a party receive spousal support? If so, how much support should be paid and for how long?

How will the parties' assets be divided?

How will the parties' debts be paid? Should they be allocated between the parties?

Separation agreements are valid and binding from the moment they are executed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement continues to be legally binding between them.

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by. In order to be legally binding and enforceable, agreements must be negotiated, drafted and executed in a specific way and include specific terms.

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. In addition, the people entering into the agreement must be able to understand the agreement, be capable of entering into it and enter into it voluntarily. The legal formalities common to all family agreements are these:

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