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|link = [https://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements]
}}A family law agreement — like a cohabitation agreement, a marriage agreement or a separation agreement — is a contract, just like the contract you 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 parties expect that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that come up when a relationship ends, although cohabitation agreements and marriage agreements are sometimes also used to settle 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 reviews the typical elements of a family law agreement 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 Agreements|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]].
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.
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' 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. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' dealing with just the care of the children when their relationship has ended.
Despite the intentions of the couple when they signed an 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 ''[[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>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>
s. 214 of the act, the court may:
#set aside part of an agreement, without changing the rest of the agreement,
===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
well 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 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 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.
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for? Will both parties pay for 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 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?
Separation agreements are entered into 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 made; in fact, when a couple is married it's
usually best to deal with the separation agreement before you apply for a divorce, 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 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, 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 their agreement continues to be legally binding on them.
==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 their 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===
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:
*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 their legal rights and obligations , to know what's a good deal and what's a bad deal,
*each person is able to express their 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>.
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
s. 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>
*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 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.
s. 93 is about property, s. 164(3) says the same thing about agreements for spousal support, and I think that this is a pretty reasonable standard to set for all other family law agreements. 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 parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
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 must both sign the agreement of their own free will, without unfair pressure by the other 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 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 recitals describe the parties' circumstances when the agreement is made in a summary sort of way. They include the basic facts of their 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 tell a complete stranger why the parties entered not just into any agreement but this particular agreement. It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will 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 often look something like this:
<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
credits cards owned by the parties and the amounts owing on them, and so on. Essentially, every fact that is relevant to the agreement should be put into the recitals to the agreement.
By the way, the parts where you see a capitalized word in brackets, like <tt>(the "Date of Separation")</tt>, are called ''defined terms''. These are very helpful because you can use a defined term to refer to the same thing throughout an agreement. Instead of saying <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia</tt> every time you need to talk about that property, you could say <tt>the house owned by Jane and John at 123 Main Street in Anytown, British Columbia (the "Family Home")</tt> once, and whenever you need to mention the property after that you can just say <tt>the Family Home</tt>.
<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>
<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
claims 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 couple are married, which laws will govern the interpretation of the agreement, and so on.
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 page with the parties' signatures should include at least one operative paragraph of the agreement.
<blockquote><tt>SIGNED by Jane )<br>
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.
For a quick summary of how to execute a family law agreement, see the ''How Do I?'' part of this resource for [[How Do I Execute a Family Law Agreement?]] Look under ''Family Law Agreements''.
<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]'', 1 SCR 295 the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.
Potential unfairness, then, can come from:
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 their 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.
===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
s. 93(3), reproduced above.
s. 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>
The same test is used to set aside the parts of agreements about contact. Under
s. 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>
*income tax consequences,
*the transfer of property,
*dividing property located outside of British Columbia, or
*liabilities to third parties and creditors.
https:// familylaw. lss.bc.ca/ bc-legal-system/legal-forms-documents/agreements/ making-agreement-after-you-separate Legal Services Society's Family Law Website: Making an agreement after separation] * [https://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/agreements/making-agreement-when-you -live-together Legal Services Society's Family Law Website: Who can help you reach an agreement? ]* [http://www.clicklaw.bc.ca/resource/1058 Legal Services Society's ‘’Living Together or Living Apart’’, chapter 2 , Making Agreements]*[http://www.clicklaw.bc.ca/resource/1259 Canadian Bar Association BC Branch: Script on marriage agreements and cohabitation agreements]*[http://www.clicklaw.bc.ca/resource/2551 West Coast LEAF: Booklet on Separation agreements and right to fairness]