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Difference between revisions of "Marriage Agreements"
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→Negotiating a marriage agreement
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===Negotiating a marriage agreement=== | ===Negotiating a marriage agreement=== | ||
If a marriage agreement is appropriate and desirable, the people involved will negotiate the terms of the agreement and one or both of the parties will draft a written agreement. As with all family law agreements, it is important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will impact on those rights and responsibilities if the marriage comes to an end. Getting independent legal advice makes the agreement harder to change later on by preventing one spouse from saying "I didn't know what it meant" or "she had the lawyer, not me." | If a marriage agreement is appropriate and desirable, the people involved will negotiate the terms of the agreement and one or both of the parties will draft a written agreement. As with all family law agreements, it is important that both parties make complete financial disclosure and get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will impact on those rights and responsibilities if the marriage comes to an end. Getting independent legal advice makes the agreement harder to change later on by preventing one spouse from saying "I didn't know what it meant" or "she had the lawyer, not me." | ||
Rememebr what s. 93(3) of the ''[[Family Law Act]]'' says about the test to set aside agreements for the division of property and debt (the same principles apply to agreements about spousal support under s. 164(3)): | |||
<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><blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.</tt></blockquote></blockquote> | |||
Marriage agreements should be signed well in advance of the marriage ceremony. If an agreement is being negotiated on the brink of the wedding, the court may be concerned about the fairness of the circumstances in which the agreement was negotiated and made. The emotional stress involved in arranging and potentially cancelling the wedding might be found to mean that someone was coerced into signing the agreement. | Marriage agreements should be signed well in advance of the marriage ceremony. If an agreement is being negotiated on the brink of the wedding, the court may be concerned about the fairness of the circumstances in which the agreement was negotiated and made. The emotional stress involved in arranging and potentially cancelling the wedding might be found to mean that someone was coerced into signing the agreement. | ||