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Difference between revisions of "Agreements after Separation"
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→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 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. | ||
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 | *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. | *The agreement must be signed by each party, and should be signed in the presence of a witness. | ||
*Neither party should be under a legal disability, however children who are parents or spouses may enter into a binding agreement. | *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. | ||
In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law | In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law such as these: | ||
*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. | ||
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*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. | ||
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, only that term will fail and the rest of the agreement will | *If one term of a separation agreement is void, 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, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do. | *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 he or she was supposed to do. | ||
*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 later 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 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. | 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. | ||