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Difference between revisions of "Family Law Agreements"
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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]] | ||
}} | }} | ||
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*set aside part of an agreement, without changing the rest of the agreement, | *set aside part of an agreement, without changing the rest of the agreement, | ||
*incorporate all or part of | *incorporate all or part of a written agreement into an order, or | ||
*make an order replacing all or part of an agreement. | *make an order replacing all or part of an agreement. | ||
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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?]]. | 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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** See chapter 2 on making agreements | ** See chapter 2 on making agreements | ||
*[https://www.clicklaw.bc.ca/resource/2751 "Separation Agreements: Your Rights and Options"] from Legal Aid BC and West Coast LEAF | *[https://www.clicklaw.bc.ca/resource/2751 "Separation Agreements: Your Rights and Options"] from Legal Aid BC and West Coast LEAF | ||
*[https://www.clicklaw.bc.ca/resource/4126 "Coping with Separation" handbook] from Legal Aid BC | *[https://www.clicklaw.bc.ca/resource/4126 "Coping with Separation" handbook] from Legal Aid BC | ||
*[https://www.clicklaw.bc.ca/resource/2627 Family Law in BC: Quick Reference Tool] from Legal Aid BC | *[https://www.clicklaw.bc.ca/resource/2627 Family Law in BC: Quick Reference Tool] from Legal Aid BC | ||
{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Beatrice McCutcheon]], 22 November 2023}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||