The good firm divorce lawyers at Richter Trial Lawyers draft pre-nuptial agreements, cohabitation agreements and separation agreements for those starting out or ending a relationship. Pre-nuptial agreements and cohabitation agreements can help to save you money down the road if you and your spouse don’t stay together. A properly negotiated separation agreement helps save you money on marriage breakdown and avoid the courts.
In March 2013, the BC Family Law Act, 2011 SBC c25 came into full force. A main focus of the FLA is to encourage spouses who are involved in family law disputes to enter into agreements instead of going to court. Under the FLA, parties are strongly encouraged to resolve family law disputes using appropriate family dispute resolution processes such as mediation or arbitration before making an application to court. Specific encouragement exists for parents and guardians to resolve conflict involving children outside of court intervention.
The FLA requires all family dispute resolution professionals to screen for family violence to ensure that spouses are not taken advantage of by the other if, for example, they are being pressured to enter into agreements. Family dispute resolution professionals are defined as family justice counsellors, parenting coordinators, lawyers advising a party in a family law dispute, mediators and arbitrators.
The FLA specifically allows spouses to enter into agreements respecting property, spousal support, child support and parenting. There are different rules respecting the validity, enforceability and review for each different type of agreement. For example, spouses may enter agreements before they are in a common law relationship or get married (pre-nuptial agreement or cohabitation agreement), or after they separate (separation agreement). Cohabitation agreements or pre-nuptial agreements cannot contain enforceable terms with respect to child support or parenting time.
Spouses may enter into pre-nuptial, cohabitation and separation agreements respecting the division of their property upon separation or divorce.
Section 81 of the FLA provides that the entire property division regime is subject to an agreement between the parties that states otherwise. Section 92 allows spouses to enter into agreements defining family property and family debt, dividing family property and family debt equally or unequally, excluding family property and family debt and valuing family property and family debt. This allows the parties to enter into any agreement they wish with respect to division of property subject only to the limitations found in section 93.
Section 93 of the FLA lays out when a court may set aside or replace an agreement respecting property:
Each of these sections apply to pre-nuptial agreements, cohabitation agreements and separation agreements.
Spouses may enter into pre-nuptial, cohabitation and separation agreements respecting spousal support payable upon separation or divorce.
Section 163 of the FLA provides that spouses may enter into agreements about spousal support, including the circumstances under which support will change or end. A spousal support agreement may include how much support will be paid, for how long, and in what circumstances it may be changed. Spousal support agreements may not include a term which requires a spouse to abstain from sexual relations after separation.
The FLA provides for limitations with respect to the enforceability of spousal support agreements. Similar to section 93, section 164 provides as that the court may set aside or replace an agreement due to non-disclosure, a spouse taking advantage of the other’s vulnerability or ignorance, a spouse not understanding the agreement or other circumstances which would make the agreement void under the common law.
If a spousal support agreement is significantly unfair having regard to the length of time that has passed since the agreement was made, changes in the spouses’ circumstances since the agreement was made, the intention of the spouses to achieve certainty, the degree to which the spouses relied on the terms of the agreement, and the objectives of spousal support are not being met, the court may set aside the agreement.
Pursuant to section 173 of the FLA, child support is prioritized over spousal support. This means that on occasion, child support payable may reduce the amount of spousal support payable by the same spouse. If that is the case and child support is no longer payable by that spouse, the spousal a spousal support order or agreement may be varied to reflect this change.
Unlike agreements respecting property, spousal support agreements under the FLA may provide for a review of the support payable.
Spouses may only enter into separation agreements respecting child support and parenting.
With respect to child support, the FLA and the Divorce Act presume that the amount payable pursuant to the Federal Child Support Guidelines applies. Section 150 of the FLA provides that an agreement respecting child support may provide for an amount that is different than the Federal Child Support Guidelines only if the court is satisfied that reasonable arrangements have been made for the support of the child, including through the division of the family property.
The single most important factor for spouses in making agreements and the court in reviewing agreements respecting parenting is the best interests of the child. Section 44 of the FLA allows parents to make agreements allocating parental responsibilities, parenting time, implementation of an agreement and dispute resolution pursuant to an agreement.
Pursuant to section 44(3) the court must set aside any agreement that is not in the best interests of the child. What is in the best interests of the child varies greatly from case to case. Each child is different and each family is different. Section 37 of the FLA provides that spouses ought to consider the best interests of considering the child’s needs and circumstances including:
If you are about to move in with someone and need a pre-nuptial agreement lawyer, or are ending your relationship and need a separation agreement lawyer, please contact us. We can provide assistance in explaining your rights and obligations with and without an agreement.