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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'', most couples who live together for two years have the same rights on separation as couples who are married, so there is no significant difference between a marriage agreement and a cohabitation agreement. Many people make agreements that will be effective regardless of whether they are living together or married.
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 person 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 happen 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.
#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 role of family law agreements==
==The elements 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
his or her obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms.
===Negotiating the terms of an agreement===
*each person has all of the information that is necessary, to figure out what's a good deal and what's a bad deal,
*each person understands
his or her legal rights and obligations, to know what's a good deal and what's a bad deal,*each person is able to express his or her views and contribute to 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>.
*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 have to make sure that the other party understands exactly what the agreement means and how it will affect
his or her 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.
*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
his or her own lawyer, before the agreement is signed about:
*what the agreement means,
*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
he or she didn't fully understand what the agreement meant or how it would impact him or her. 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 !
===Drafting an agreement===
<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>2. Neither party will molest, annoy or harass the other or
his or her 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>
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
his or her name to the agreement. The witness usually provides some other information, typically his or her full name, address, and occupation. The page with the parties' signatures should include at least one operative paragraph of the agreement.
<blockquote><tt>SIGNED by Jane )<br>
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
he or she 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.
*exploiting a party's emotional or psychological vulnerability,
*influence over a party through dominance and oppression,*control over the family finances,*influence over the children's allegiances, or*<span class="noglossary">access</span> to or control over the <span class="noglossary">release</span> of financial information.
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, and sign certificates of independent legal advice.
*'''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
his or her right mind, down tools 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 facts, 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.
*income tax consequences,
*the transfer of property,
dividing property located outside of British Columbia, or,
*liabilities to third parties and creditors.
===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 ― 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===
===Remember the loose ends===
It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included.
If a house has to be sold , for example, who will list it and hire the realtor? Who will live in it until the sale? How will the list price be chosen? Under what conditions will the list price be reduced? Are there any repairs or improvements that need to be made, and if so who will do them and how will they be paid for? How will the sale proceeds be dealt with? What debts will be paid from the sale proceeds? These things should all be specified, where at all possible.