Difference between revisions of "Changing Family Law Agreements"

After a family law agreement has been signed, three things can happen:  

#the parties can follow the agreement and everything continues as it should,

#the circumstances of the parties or a child change and their agreement must also change, or

#one of the parties refuses to follow the agreement and it must be enforced by the courts.

This page focuses on separation agreements and talks how agreements can be changed without going to court and when the agreements can be set aside by the court. You can learn about how family law agreements are enforced in the page on [[Enforcing Family Law Agreements]].

There are always two ways of doing something, the hard way or the easy way. In family law, the easy way usually involves discussion and negotiation. The hard way usually involves a court proceeding, and is generally a fair bit more expensive and time-consuming than the easy way.

Any family law agreement can be changed at any time, as long as the parties to the agreement agree to the change. If the parties can't agree on the change or on the terms of the change, the party who wants the change may have to go to court if the problem is important enough. Since the court doesn't have the power to vary an agreement, the best the court can do is to cancel the party of the order that has to change and then make an order in place of the part that was cancelled.

An agreement changing an agreement must refer to the original agreement and is usually titled something like "Amendment to the Separation Agreement Executed on 1 April 2010". Amending agreements are usually very short as the idea is to change just one particular part of an agreement rather than to rewrite the original agreement in its entirety. The amending agreement should specify which particular paragraph of the original agreement is being changed, and then set out the new text of that paragraph:

Whatever method is chosen, it's always better for people to reach a resolution of the problem themselves without having to go to court. This way the power remains in the hands of the people whose lives are affected by the agreement and who must live with it on a daily basis, rather than in the hands of someone else, a judge, who may make a decision that no one is entirely happy with.

If a party to an agreement becomes unhappy with an agreement, there are two ways to proceed. First, the party could ask the court to throw out the entire agreement because it is unfair, because the agreement is invalid or because of some other fatal problem with the contract. Second, the party could apply under the ''[[Family Law Act]]'' to set aside just part of the agreement.

In general, the court will be reluctant to meddle with a reasonable separation agreement. In fact, the Court of Appeal for British Columbia has said that separation agreements should be treated by the courts with "great deference." This is because a separation agreement is a private contract between two parties which is the product of an often lengthy process of negotiation, and the courts are usually unwilling to disturb an agreement without a very good reason for doing so. The courts will be similarly reluctant to change a final order that was the product of a separation agreement.

#a party signed the agreement without independent legal advice, did not fully understand what the agreement meant and signed it by ''mistake'',

A spouse may be able to challenge the validity of an agreement where he or she did not receive independent legal advice before executing the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing going into the agreement, and to ensure that one party doesn't unintentionally enter into an unfair agreement.

There is, however, no requirement that independent legal advice be sought before an agreement is executed. In most situations, the absence of independent legal advice alone will not be enough to overturn an agreement by itself.