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Difference between revisions of "Family Law Agreements"
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Despite the intentions of the parties when they signed an agreement, the contents of their agreement may still wind up being evaluated 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 is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the agreement and make an order on different terms. | Despite the intentions of the parties when they signed an agreement, the contents of their agreement may still wind up being evaluated 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 is unfair or becomes 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: | 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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The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. 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 your application. | The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. 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 your application. | ||
==The | ==The role of family law agreements== | ||
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. | ||
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It is almost always better to settle a dispute 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 each other in the future. Family law agreements also give you an incredibly flexible way of resolving your dispute. Your agreement can be tailored to suit your particular circumstances and needs, and can be far more creative in resolving a problem than a court order ever could be. | It is almost always better to settle a dispute 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 each other in the future. Family law agreements also give you an incredibly flexible way of resolving your dispute. Your agreement can be tailored to suit your particular circumstances and needs, and can be far more creative in resolving a problem than a court order ever could be. | ||
===Marriage and | ===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 address 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. | Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes address 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. | ||
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. | 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. | ||
The rest of this | The rest of this resource talks about the legal rights and duties involved when a couple lives together, marries, or has a baby, and the entitlements and obligations that couples have when they separate. | ||
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 and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement. | 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 and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement. | ||
====During the | ====During the relationship==== | ||
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 work week, to having a certain number of holidays abroad each year, to always wearing purple shirts on Thursdays, to doing the household chores. Typically, however, people want to address issues like these: | ||
*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account? | *How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account? | ||
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Some agreements do not 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, 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. | Some agreements do not 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, 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 | ====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 non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. | 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 non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. | ||
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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. | ||
===Separation | ===Separation agreements=== | ||
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 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. | ||
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Separation agreements are binding from the moment they are signed by both parties. They operate from the time they are made and, where children, child support or spousal support are issues, they 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 the agreement may continue to be legally binding on them. | Separation agreements are binding from the moment they are signed by both parties. They operate from the time they are made and, where children, child support or spousal support are issues, they 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 the agreement may continue to be legally binding on them. | ||
==The | ==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. | 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 | ===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. 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 bad deal, | |||
*each person is able express his or her views and contribute to shaping the agreement, and | |||
*there is no pressure to reach an agreement beyond the importance of reaching a reasonable agreement and saving money on legal fees and court costs. | |||
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 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: | 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 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> | <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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This is fairly straightforward: | This is fairly straightforward: | ||
*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. | |||
Although 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. | Although 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. | ||
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As a general rule, each party who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer, about: | As a general rule, each party who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer, about: | ||
*what the agreement means, | |||
*what rights and obligations the agreement gives each party, | |||
*how the agreement does or doesn't limit the other legal remedies that might be available, | |||
*how the agreement may affect each party 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. | |||
Each party should find their own separate lawyer and meet with the lawyer to review the agreement before it is signed. 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! | Each party should find their own separate lawyer and meet with the lawyer to review the agreement before it is signed. 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 | ===Drafting an agreement=== | ||
Lawyers often write 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. | Lawyers often write 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. | ||