The breakdown of any relationship can be very distressing. This is particularly so in the breakdown of a marriage. You are caught up in many emotions and yet need to focus on the practical realities of the situation at hand.
Family law can be complicated and a blog entry simply cannot answer all your questions or tell you everything you need to know.
The most common and often necessary contract negotiated between couples is a separation agreement. To enter into a separation agreement, you and your partner must have cohabited and must now be living separate and apart. However, couples who continue to live under the same roof may still be considered to be living separate and apart if they are living independent lives.
Separation agreements deal with custody and access to children, financial support arrangements, division of property, and estate considerations. However, be aware that a family court may disregard provisions in a separation agreement regarding children, where it is in the best interest of the children to do so.
Whether it is a marriage contract, cohabitation agreement or separation agreement, to be considered a valid domestic contract in Ontario, the following conditions must be met:
1. The domestic contract must be in writing, signed by both parties and their signatures witnessed by other persons;
2. Both parties must participate in the negotiation of terms of the domestic contract and have reasonable time to consider the terms of the domestic contract (without being under pressured to sign because of an imminent deadline such as the wedding date set to occur just a few days away);
3. Both parties must enter into the domestic contract voluntarily, without fear, threats, duress or influence by the other;
4. Both parties must understand the terms of the domestic contract and how such terms may affect them in future; to do so, both parties should have independent legal advice from separate lawyers, to explain the terms of the domestic contract and their respective rights and obligations under family law;
5. Both parties must provide full disclosure of their circumstances, including all information regarding their finances; and
6. The domestic contract must be reasonable and fair, taking into consideration the parties’ individual circumstances.
The following are usually considered in a separation agreement so each party’s rights and obligations are clearly stated. The more time you spend with your spouse discussing these subjects prior to retaining lawyers, the less time your lawyers will spend time in the preparation of your separation agreement, thereby lowering your legal costs.
Parenting Issues (Child Custody and Access)
– Joint Custody or Sole Custody
– Primary Residence
– Terms of visitation
– Removing child from jurisdiction
– Name change
Equalization of Assets
– Household Assets
– Employment and Pension Benefits
– Canada Pension Plan
– Registered Retirement Savings Plan
– Investment Assets and Bank Accoounts
– Children’s bank accounts
– Matrimonial Home
– Other Property
– Complete Release of (or agreement on) spousal support payments
– Term of Support
– Amount of Support
– Insurances (life, medical, dental etc.)
– Extra Ordinary Expenses
– Provision for education
– Cost of Living
– Material change in circumstances
– Legal Fees
– Financial Disclosure
– Independent Legal Advice
– Resumption of Cohabitation