Family Law Agreements: Difference between revisions
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{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge | ||
|CoAuthor = [[Beatrice McCutcheon]] | |||
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]] | |ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]] | ||
}} | }} | ||
{{ | {{LSSbadge | ||
| resourcetype = | | resourcetype = information on | ||
|link = [https:// | |link = [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements Separation Agreements] | ||
}} | }} | ||
Family law agreements, like cohabitation agreements, marriage agreements and separation agreements, are contracts, just like the contract you might have with an employer, a landlord or a company you rent a car from: each party promises to do something in exchange for something the other party promises to do, and both parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to resolve the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to decide how a relationship will be managed. | |||
This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also | This chapter begins with an overview of family law agreements, and discusses the role they play during relationships and when relationships end. It also talks about the typical elements of family law agreements and discusses some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself. | ||
The other sections of this chapter look at [[Cohabitation Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]] and [[Separation | The other sections of this chapter look at [[Cohabitation and Living Together Agreements|cohabitation agreements]], [[Marriage Agreements|marriage agreements]], and [[Agreements after Separation|separation agreements]] in more detail, and provide additional information about [[Enforcing Family Law Agreements|enforcing an agreement]] and [[Changing Family Law Agreements|changing an agreement]]. | ||
==Introduction== | ==Introduction== | ||
People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also called a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement. Under the ''Family Law Act'', | People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also called a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement. Under the ''[[Family Law Act]]'', couples who live together for at least two years have the same rights when they separate as married couples do. As a result, there aren't any important differences between marriage agreements and cohabitation agreements. | ||
The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship or if one | The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship or if one of the parties dies during the relationship. The weird thing about marriage agreements and cohabitation agreements is that although they mostly talk about what will happen when a relationship ends, that may not be something that happens for five years or 20 years, or it may never happen at all. As a result, it can be difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends. | ||
Married spouses, unmarried spouses and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved. | Married spouses, unmarried spouses, and other unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved. | ||
All of these different kinds of agreement are legal contracts that describe the parties' | All of these different kinds of agreement are legal contracts that describe the parties' entitlements and responsibilities towards each other. 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 usually deal with all of the legal issues that come up when a relationship ends, they don't have to. Some issues can be left for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just issues about parenting after separation. | ||
Despite the intentions | Despite the intentions a couple may have when they sign a family law agreement, the terms of their agreement may still wind up being reviewed 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 was unfairly negotiated, is significantly unfair, or becomes significantly unfair, the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms. | ||
The '' | The ''Family Law Act'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this: | ||
<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote> | <blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote> | ||
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<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote> | <blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote> | ||
Under | Under section 214 of the act, however, the court may: | ||
*set aside part of an agreement, without changing the rest of the agreement, | |||
*incorporate all or part of a written agreement into an order, or | |||
*make an order replacing all or part of an agreement. | |||
The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the particular part of the agreement at issue. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with setting aside agreements. | The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the particular part of the agreement at issue. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with setting aside agreements. | ||
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The fundamental purpose of all family law agreements is to settle an issue that has come up, or one that could come up, and might be the subject of a legal dispute. | The fundamental purpose of all family law agreements is to settle an issue that has come up, or one that could come up, and might be the subject of a legal dispute. | ||
It is almost always better to settle a dispute yourself 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 you the best possible chance of maintaining a halfway decent relationship with | It is almost always better to settle a dispute yourself 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 you the best possible chance of maintaining a halfway decent relationship with your ex in the future. Family law agreements also give you an incredibly flexible way of resolving your dispute. Your agreement can be tailored to <span class="noglossary">suit</span> your particular circumstances and needs, and can be far more creative in resolving a problem than a court order ever could be. | ||
===Marriage and cohabitation agreements=== | ===Marriage and cohabitation agreements=== | ||
Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made | Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes talk about how things will be handled during the relationship. These sorts of agreements are normally made before the parties marry or begin to live together, but can be made at any time during the parties' relationship. | ||
It is important to know that you do not have to | It is important to know that you do not have to sign 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 an agreement, you are under no legal obligation to do so. With or without a family law agreement, remedies are almost always available under the common law, the ''[[Divorce Act]]'', or the ''[[Family Law Act]]'' if problems crop up later on. | ||
Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter 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 significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets or debts and no children don't necessarily | Marriage agreements and cohabitation agreements aren't always appropriate. Most people who enter 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 significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets or debts and no children don't necessarily get any benefit from signing a marriage agreement or a cohabitation agreement. | ||
====During the relationship==== | ====During the relationship==== | ||
The sorts 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 | The sorts 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 workweek, to having a certain number of vacations each year, to always wearing purple shirts on Thursdays, to sharing the household chores. Most of the time, people want to address issues like these: | ||
*How will a joint bank <span class="noglossary">account</span> be managed? Will the parties contribute a fixed monthly amount to the joint account? | *How will a joint bank <span class="noglossary">account</span> be managed? Will the parties contribute a fixed monthly amount to the joint account to cover shared costs? | ||
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared | *How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared by everyone? | ||
*How will unexpected expenses be paid for? Will both parties | *How will unexpected expenses be paid for? Will both parties contribute to the cost of big household repairs? | ||
*How will savings, RESPs, RRSPs and retirement funds be managed? Will each party be required to contribute a fixed monthly amount? | *How will savings, RESPs, RRSPs, and retirement funds be managed? Will each party be required to contribute a fixed monthly amount? | ||
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance? | *How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance? | ||
Most cohabitation and marriage agreements don't deal with these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement about how a relationship will be managed, the better. You wouldn't want every aspect of your relationship governed by a legal contract; that's exactly the sort of thing that encourages relationship breakdown. | |||
====After the relationship==== | ====After the relationship==== | ||
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 also deal with the payment or waiver of spousal support. | 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 also deal with the payment or waiver of spousal support. It's hard to make plans about parenting after separation or child support before you've had any kids. | ||
Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate. | Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate. | ||
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===Separation agreements=== | ===Separation agreements=== | ||
Separation agreements are | Separation agreements are made after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is signed; in fact, when a couple is married it's best to deal with the separation agreement before you go to court for a divorce order, just in case you can't reach an agreement. | ||
Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues: | Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the legal issues related to the separation in a way that both parties are as happy with as possible. Separation agreements usually deal with the following issues: | ||
*How will the children be cared for? How will important parenting decisions about the children be made? | *How will the children be cared for? How will important parenting decisions about the children be made? | ||
*If the children will be living mostly with one parent, how much time | *If the children will be living mostly with one parent, how much time will the children have with the other parent? | ||
*How much child support be paid, and which of the children's expenses will be shared between the parents? | *How much child support will be paid and to whom, and which of the children's expenses will be shared between the parents? | ||
*Should | *Should someone receive spousal support? If so, how much support should be paid and for how long? | ||
*How will the family property be divided? Should the parties' excluded property be divided? | *How will the family property be divided? Should any of the parties' excluded property be divided? | ||
*How will the family debt be | *How will the family debt be paid or split up? | ||
Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with. | Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with. | ||
Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, | Separation agreements are binding from the moment they are signed by both parties, unless the agreement says something different. They operate from the time they are made and, where children, child support, or spousal support are issues, they often continue to operate indefinitely into the future. Theoretically, separation agreements are 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 their agreement continues to be binding on them. | ||
==The | ==The anatomy of a family law agreement== | ||
The point of a family law agreement is to make a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to their obligations. In order to be legally binding and enforceable, agreements must be negotiated, | The point of a family law agreement is to make a legal contract that both parties intend to be bound by, and that the court can and will enforce if a party doesn't live up to their obligations. In order to be legally binding and enforceable, agreements must be negotiated, written, and signed in a certain way and include certain terms. | ||
===Negotiating the terms of an agreement=== | ===Negotiating the terms of an agreement=== | ||
Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that: | Family law agreements are about really important things like where the children will live, who will pay support to whom, and how the parties will divide their property and debts. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that: | ||
*each person has all of the information that is necessary | *each person has all of the information that is necessary to figure out what's a good deal and what's not, | ||
*each person understands their legal rights and obligations | *each person understands their legal rights and obligations to know what's a good deal and what's not, | ||
*each person is able to express their views and contribute | *each person is able to express their views and contribute when negotiating the agreement, and | ||
*there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court <span class="noglossary">costs</span>. | *there is no pressure to reach an agreement on either party, beyond the importance of reaching a reasonable agreement and saving money on legal fees and court <span class="noglossary">costs</span>. | ||
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. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what | 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. The people who are negotiating the agreement must be able to understand the agreement, be capable of agreeing to it, and agree to it voluntarily. This is what section 93(3) of the ''[[Family Law Act]]'' says about agreements for the division of property and debt: | ||
<blockquote><tt>(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 ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote> | <blockquote><tt>(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 ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote> | ||
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*you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement, | *you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement, | ||
*you can't exploit the other party's weaknesses to get a good deal for yourself, | *you can't exploit the other party's weaknesses to get a good deal for yourself, | ||
*you have to make sure that the other party understands exactly what the agreement means and how it will affect their life, both now and in the future, and | *you have to make sure that the other party understands exactly what the agreement means and how it will affect their life, both now and in the future, and | ||
*you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement, and the agreement must be reasonable. | *you can't force or pressure someone to sign the agreement, you can't trick or cheat someone into signing the agreement, and the agreement must be reasonable. | ||
Although | Although section 93 is about property, section 164(3) says the same thing about agreements for spousal support, and I think that this is a pretty reasonable standard to use for all other issues in a family law agreement. If you don't want the court to throw out your agreement, you've got to take the time to do it right, and you've got to be fair and not take advantage of the other party. | ||
The legal formalities common to all family law agreements are these: | The legal formalities common to all family law agreements are these: | ||
*The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances. | *The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances. | ||
* | *In most cases, the agreement must be in writing. While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are. | ||
*The parties can't be under any sort of legal disability such as insanity. | *The parties can't be under any sort of legal disability such as insanity. | ||
*The parties must both sign the agreement of their own free will, without unfair pressure by the other party. | *The parties must both sign the agreement of their own free will, without unfair pressure by the other party. | ||
*The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement. | *The agreement must be properly executed, which means being signed by each of the parties in the presence of at least one witness who is not a party to the agreement. | ||
As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer | As a general rule, each person who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer given before the agreement is signed, about: | ||
*what the agreement means, | *what the agreement means, | ||
*what rights and obligations the agreement gives to each party, | *what rights and obligations the agreement gives to each party, | ||
*how the agreement does or doesn't limit the other legal remedies that might be available, | *how the agreement does or doesn't limit the other legal remedies that might be available, | ||
*how the agreement may affect each person over the short- and long-term, and | *how the agreement may affect each person over the short- and long-term, and | ||
*the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement. | *the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement. | ||
Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that they didn't fully understand what the agreement meant or how it would impact them. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement! | Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that they didn't fully understand what the agreement meant or how it would impact them. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement! | ||
=== | ===Writing an agreement=== | ||
Lawyers often | Lawyers often draft family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement. | ||
A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with <span class="noglossary">instructions</span> for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia. | A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with <span class="noglossary">instructions</span> for completing and executing them, or you might try [http://www.lawdepot.com LawDepot.com], an American company which says that it has family law agreement kits suitable for British Columbia. | ||
There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at | There are still other resources available for free that might help, and your library might have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements are also available at branches of [http://www.courthouselibrary.ca/about/libraries.aspx Courthouse Libraries BC]; one of the very best is the ''[https://www.courthouselibrary.ca/catalogue-item?cid=7280 Family Law Agreements: Annotated Precedents]'' published by the Continuing Legal Education Society of British Columbia. | ||
What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement! | What follows are examples of the typical elements of a family agreement, using the example of John Doe and Jane Doe, a married couple who are entering into a separation agreement. These examples are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement! | ||
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The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this: | The introduction to an agreement, also known as the ''exordium'' (isn't that a great word?), is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this: | ||
<blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, | <blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2022.</tt></blockquote> | ||
<blockquote><tt>BETWEEN:</tt></blockquote> | <blockquote><tt>BETWEEN:</tt></blockquote> | ||
<blockquote><blockquote><tt>Jane Doe<br> | <blockquote><blockquote><tt>Jane Iphegenia Doe<br> | ||
of 123 King Street, Anytown, British Columbia<br> | of 123 King Street, Anytown, British Columbia<br> | ||
("Jane")</tt></blockquote></blockquote> | ("Jane")</tt></blockquote></blockquote> | ||
<blockquote><tt>AND:</tt></blockquote> | <blockquote><tt>AND:</tt></blockquote> | ||
<blockquote><blockquote><tt>John Doe<br> | <blockquote><blockquote><tt>John McKinnon Doe<br> | ||
of 456 Queen Street, Anytown, British Columbia<br> | of 456 Queen Street, Anytown, British Columbia<br> | ||
("John")</tt></blockquote></blockquote> | ("John")</tt></blockquote></blockquote> | ||
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====The recitals==== | ====The recitals==== | ||
The recitals | The recitals provide a short description of the parties' circumstances when the agreement is made. They usually talk about the basic facts of the parties' relationship, give the names and birth dates of any children, describe the property and debts that the agreement deals with, and describe the parties' incomes, among other things. | ||
The recitals are the foundation on which the agreement is built. They should be sufficient to | The recitals are the foundation on which the agreement is built. They should be sufficient to explain to a complete stranger why the parties entered not just into any agreement, but this particular agreement. The recitals set out the facts that were important to the parties at the time the agreement was made. | ||
In the case of a separation agreement, the recitals | In the case of a separation agreement, the recitals usually look something like this: | ||
<blockquote><tt>WHEREAS:</tt></blockquote> | <blockquote><tt>WHEREAS:</tt></blockquote> | ||
<blockquote><tt>A. Jane and John were married on August 1st, | <blockquote><tt>A. Jane and John were married on August 1st, 2006 at Anytown, British Columbia.</tt></blockquote> | ||
<blockquote><tt>B. There are two children of the marriage:</tt></blockquote> | <blockquote><tt>B. There are two children of the marriage:</tt></blockquote> | ||
<blockquote><blockquote><tt>i) Buckminster Elliot Doe, born on March 5th, | <blockquote><blockquote><tt>i) Buckminster Elliot Doe, born on March 5th, 2008, and</tt></blockquote></blockquote> | ||
ii) Randall Eustace Doe, born on April 11th, | <blockquote><blockquote><tt>ii) Randall Eustace Doe, born on April 11th, 2010</tt></blockquote></blockquote> | ||
<blockquote><tt>(together, "the Children").</tt></blockquote> | <blockquote><tt>(together, "the Children").</tt></blockquote> | ||
<blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote> | <blockquote><tt>C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.</tt></blockquote> | ||
<blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote> | <blockquote><tt>D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.</tt></blockquote> | ||
<blockquote><tt>E. Jane and John have | <blockquote><tt>E. Jane and John have been separated since December 25th, 2019 (the "Date of Separation"), when Jane left the family home.</tt></blockquote> | ||
<blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | <blockquote><tt>F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had parenting time with the Children every other weekend from Friday after school until Sunday at 7:00pm.</tt></blockquote> | ||
The rest of the recitals will continue in the same way. Other recitals might describe the make, model and value of each party's car, the address and value of the family home, the | The rest of the recitals will continue in the same way. Other recitals might describe the make, model, and value of each party's car, the address and value of the family home, the credit cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is important to the agreement should be put into the recitals to the agreement. | ||
By the way, the | By the way, the bits where you see a capitalized word in brackets between quote marks, like this | ||
<blockquote><tt>(the "Date of Separation")</tt></blockquote> | |||
are called ''defined terms''. These are very helpful because you can use a defined term as a shorthand way of referring to the same thing throughout an agreement. Instead of saying "the house owned by Jane and John at 123 Main Street in Anytown, British Columbia" every time you need to talk about the house, you could say "the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")" once, and whenever you need to mention the property after that you can just say "the Family Home." | |||
====The operative clauses==== | ====The operative clauses==== | ||
The operative clauses of an agreement are the nuts and bolts of the | The operative clauses of an agreement are the nuts and bolts of the agreement. They are the legal terms of the agreement and describe what each party's rights and obligations are. In the case of a separation agreement, the operative clauses might look like this: | ||
<blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote> | <blockquote><tt>JANE AND JOHN AGREE THAT:</tt></blockquote> | ||
<blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | <blockquote><tt>1. Jane and John will live separate from each other.</tt></blockquote> | ||
<blockquote><tt>2. Neither party will molest, annoy or harass the other or | <blockquote><tt>2. Neither party will molest, annoy, or harass the other or their friends, relatives, and associates.</tt></blockquote> | ||
<blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.</tt></blockquote> | <blockquote><tt>3. Except as is specifically provided in this Agreement, Jane and John will each keep all property presently in their possession and control as their own property, free and clear of any and all claim by the other.</tt></blockquote> | ||
<blockquote><tt>THE CHILDREN</tt></blockquote> | <blockquote><tt>THE CHILDREN</tt></blockquote> | ||
<blockquote><tt>4. Jane and John are the guardians of the Children, and John will have the Children's primary residence.</tt></blockquote> | <blockquote><tt>4. Jane and John are the guardians of the Children, and John will have the Children's primary residence.</tt></blockquote> | ||
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<blockquote><tt>CHILD SUPPORT</tt></blockquote> | <blockquote><tt>CHILD SUPPORT</tt></blockquote> | ||
<blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote> | <blockquote><tt>8. Jane will pay child support to John in the amount of $525 on the first day of each and every month, continuing for so long as the Children remain "children" as defined by the ''Family Law Act''.</tt></blockquote> | ||
The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative | The rest of the operative clauses will continue in the same way. Other paragraphs might deal with specific property such as a car or the family home, the payment of debts, and the sharing of the children's expenses. The operative clauses might also say who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce (if the people are married), which laws (e.g. ''[[Divorce Act]]'' or ''[[Family Law Act]]'') will govern the interpretation of the agreement, and so on. | ||
====The signatures==== | ====The signatures==== | ||
The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign their name to the agreement. The witness usually provides some other information, typically their full name, address, and occupation. | The last part of a family law agreement is where each of the parties will sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times, and in different locations. Either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign their own name as a witness to the agreement. The witness usually provides some other information, typically their full name, address, and occupation. | ||
<blockquote><tt>SIGNED by Jane )<br> | <blockquote><tt>SIGNED by Jane )<br> | ||
on March 20, | on March 20, 2022, )<br> | ||
at Anytown, BC, )<br> | at Anytown, BC, )<br> | ||
in the presence of: )<br> | in the presence of: )<br> | ||
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This would be repeated for John's signature and that of John's witness. | This would be repeated for John's signature and that of John's witness. | ||
The witnesses to the parties' signatures do not become parties to the agreement and the agreement cannot be enforced against them. The signature of the witness simply says that they saw the particular party sign the agreement, in case someone ever denies signing the agreement. | The witnesses to the parties' signatures do not become parties to the agreement, they're not bound by the agreement, and the agreement cannot be enforced against them. The signature of the witness simply says that they saw the particular party sign the agreement, in case someone ever denies signing the agreement. | ||
It is also a good idea for each of the parties and the witnesses to initial each page of the agreement, other than the page with the parties' signatures. This helps stop people from claiming that a page of the original agreement was later replaced by a page with different terms. | |||
The formatting of the final agreement document should be looked at to make sure that the last page with all of the signatures also includes at least one or two of the operative clauses at the top. You don't want the signatures alone on a page. For example, if your separation agreement has 13 pages containing 30 operative clauses, page 13 should have operative clause 30 directly above the signatures. | |||
For a quick summary of how to execute a family law agreement, see the '' | For a quick summary of how to execute a family law agreement, see the ''Helpful Guides & Common Questions'' part of this resource for [[How Do I Execute a Family Law Agreement?]]. | ||
===Note about oral agreements=== | |||
Oral agreements are possible, but do not offer nearly the same protection, certainty, or overall purpose as a written agreement. Oral agreements alone should be avoided and are not a practical alternative to proper written agreements. | |||
For one thing, proving the existence of an oral agreement — especially when the other person disputes you — is a complex and risky task, and you need evidence. | |||
Secondly, if there's a written agreement that deals with property, section 94(2) of the ''Family Law Act'' says that a judge cannot make a property division order without first hearing an application to set aside all or some of the written agreement. Applications to set aside written family law agreements are made under section 93, and setting aside any portion of a written agreement requires the person applying to prove one of the situations under section 93(3) applies: | |||
* a spouse failed to disclose significant property or debts, | |||
* a spouse took improper advantage of the other spouse's vulnerability, | |||
* one of the spouses did not understand the nature or consequences of the written agreement, or | |||
* the contract would be voidable under the common law rules around contracts. | |||
If the applicant cannot show one of those situations existed when the written agreement was entered into, then they can try to have it set aside for being ''significantly unfair'' under section 93(5), although those claims are difficult to succeed with. | |||
Ultimately, a valid written agreement that satisfies the criteria under section 93(1), meaning it's not only in writing but signed and witnessed, is a significant hurdle that stands in the way of an applicant who wants to get the court to issue an order respecting property division. | |||
Oral agreements, on the other hand, do not restrict a court from making a property division order. Oral agreements become but one factor that a court may consider under section 95 in determining that an equal division of family property is ''significantly unfair'', and can be used to argue for division of excluded property under section 96. As the court said in ''[https://canlii.ca/t/k15d5 Tereposky v. Fooks]'', 2023 BCSC 1989, "Informal agreements regarding the division of assets and the spouses' financial arrangements during the relationship ''may support a finding of significant unfairness''" (emphasis added). Given this, it is better for parties to make a written agreement than to attempt to rely on an oral agreement. | |||
==Negotiating considerations== | ==Negotiating considerations== | ||
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<blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote> | <blockquote>"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."</blockquote> | ||
In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'',[2009] 1 SCR 295 the Supreme Court of Canada added another factor to this list | In a 2009 case, ''[http://canlii.ca/t/22hw5 Rick v. Brandsema]'', [2009] 1 SCR 295, the Supreme Court of Canada added another factor to this list: incomplete or misleading financial disclosure. In this case, the court noted that parties can only give their genuine and informed consent to an agreement if they have the information they need to decide if the agreement is acceptable. | ||
Potential unfairness, then, can come from: | Potential unfairness, then, can come from: | ||
*exploiting a party's emotional or psychological vulnerability, | *exploiting a party's emotional or psychological vulnerability, | ||
*influence over a party through dominance | *influence over a party through dominance or oppression, | ||
*control over the family finances, | *control over the family finances, | ||
*influence over the children's allegiances, or | *influence over the children's allegiances, or | ||
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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: | ||
*'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement | *'''Independent legal advice:''' Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the lawyers who provided the independent legal advice witness the parties' signatures on the agreement. Have the lawyers sign certificates saying that they provided legal advice to their clients. | ||
*'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in their right mind, | *'''Respect vulnerabilities:''' Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in their right mind, respectfully stop the negotiation and come back to the table later. Consider the need for counselling or therapy before continuing. | ||
*'''Make full disclosure:''' Always make full disclosure of all financial | *'''Make full disclosure:''' Always make full disclosure of all important financial information, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment <span class="noglossary">account</span> balances, outstanding debts, property values, values of shares and options, art and jewelry appraisals, and so on. | ||
*'''Never lie:''' Intentionally misleading someone about the value of something, the amount of a debt, past income and future income expectations, or any other relevant fact will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | *'''Never lie:''' Intentionally misleading someone about the value of something, like the amount of a debt, past income and future income expectations, or any other relevant fact, will always undermine the strength of an agreement. Be scrupulously honest and transparent at all times. | ||
*'''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'' and the ''Family Law Act'' talk about | *'''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'' and the ''Family Law Act'' talk about the time children should have with their parents and how their parents make decisions affecting them. 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 that your agreement doesn't stray too far from the basic law. | ||
===The tests under the ''Family Law Act''=== | ===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 | 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 section 93(3), reproduced above. | ||
Under | Under section 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: | ||
<blockquote><tt>On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote> | <blockquote><tt>On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote> | ||
The same test is used to set aside the parts of agreements about contact. Under | The same test is used to set aside the parts of agreements about contact. | ||
Under section 148(3), the court can set aside the parts of agreements about child support if it would make a different order: | |||
<blockquote><tt>On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150.</tt></blockquote> | <blockquote><tt>On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150.</tt></blockquote> | ||
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==Drafting considerations== | ==Drafting considerations== | ||
It is always best to have a lawyer prepare any sort of contract, including family law agreements, that you intend to sign. 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 might be giving up by entering into the contract, and other unexpected but critical issues the agreement might involve, such as: | |||
*income tax consequences, | *income tax consequences, | ||
*the transfer of property, | *the transfer of property, | ||
*dividing property located outside of British Columbia, or | *dividing property located outside of British Columbia, or | ||
*liabilities to third parties and creditors. | *liabilities to third parties and creditors. | ||
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===Don't use "legalese"=== | ===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 <span class="noglossary">costs</span>, and try to use plain language to express the content of your agreement. Words like "issue" can have a particular legal meaning | Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all <span class="noglossary">costs</span>, and try to use plain language to express the content of your agreement. Words like "issue" can 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 clear as possible=== | ===Be as clear as possible=== | ||
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*What would a complete stranger think of your agreement? | *What would a complete stranger think of your agreement? | ||
*Would the stranger be able to understand what you mean? | *Would the stranger be able to understand what you mean? | ||
*Are any parts of the agreement vague or capable of more than one meaning? | *Are any parts of the agreement vague or capable of having more than one meaning? | ||
*Do you understand what the agreement means? | *Do you understand what the agreement means? | ||
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===Avoid agreeing to agree=== | ===Avoid agreeing to agree=== | ||
An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry | An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry 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 loose ends=== | ===Remember the loose ends=== | ||
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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. | ||
Sometimes people who have separated are desperate to have done with it, to | Sometimes people who have separated are desperate to have done with it, to get a deal wrapped up and signed. 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 10 more years. It can be very difficult to change an agreement in the future, especially one about the division of property or debts, if only one of the parties wants the agreement to be changed. Be patient and take your time. | ||
===Use sample clauses with caution=== | ===Use sample clauses with caution=== | ||
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===Legislation=== | ===Legislation=== | ||
*''[ | *''[https://canlii.ca/t/8q3k Family Law Act]'' | ||
*''[ | *''[https://canlii.ca/t/551f9 Divorce Act]'' | ||
===Links=== | ===Links=== | ||
* [ | *[https://family.legalaid.bc.ca/bc-legal-system/court-orders Court Orders] from Legal Aid BC | ||
* [ | *[https://family.legalaid.bc.ca/separation-divorce/going-through-separation Going Through Separation] from Legal Aid BC | ||
* [ | *[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/family-law/parenting-apart Parenting Apart] from the website of the BC Ministry of Attorney General | ||
*[ | *[https://justice.gc.ca/eng/fl-df/fact-fiches.html Parenting Arrangements After Separation or Divorce] from the website of the Department of Justice | ||
*[ | *[https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents Legal forms and documents] from Legal Aid BC | ||
*[https://family.legalaid.bc.ca/bc-legal-system/ive-been-served I've been served with a court form] from Legal Aid BC | |||
===Resources=== | |||
*[https://dialalaw.peopleslawschool.ca/marriage-agreements/ Marriage Agreements and Cohabitation Agreements] from Dial-a-Law by the People's Law School | |||
*[https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements Agreements] from Legal Aid BC, see "Making an agreement after you separate", and "Who can help you reach an agreement?" | |||
* [https://family.legalaid.bc.ca/resources/living-together-or-living-apart Living Together or Living Apart] | |||
** See chapter 2 on making agreements | |||
*[https://westcoastleaf.org/work/separation-agreements/ Separation Agreements: Your Rights and Options] from Legal Aid BC and West Coast LEAF | |||
*[https://family.legalaid.bc.ca/resources/coping-separation-handbook Coping with Separation Handbook] from Legal Aid BC | |||
*[https://legalaid.bc.ca/publications/pub/family-law-bc-quick-reference-tool Family Law in BC: Quick Reference Tool] from Legal Aid BC | |||
{{REVIEWED | reviewer = [[Beatrice McCutcheon]], 22 November 2023}} | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||