Family Law agreements
There are three basic types of family law agreements: cohabitation agreements, marriage agreements, and separation agreements.
A cohabitation agreement is an agreement reached between two people who will live together as “common law” partners and who do not have an intention to marry.
A marriage agreement is entered into in anticipation of a formal marriage. This type of agreement is sometimes called a “prenuptial” agreement.
A separation agreement is entered into between two people after they separate, either from a common law relationship or from a marriage.
These agreements have some common features and are subject to common rules but they also differ in many important respects.
All three types of agreements are contracts and are therefore governed by the basic law of contract.
First, there must be an offer made, acceptance of the offer, and consideration passing between the two people. “Consideration” is where one person receives a benefit or right from the other while the other person sustains a loss or incurs an obligation.
Second, although it may sound trite: any such agreement should be in writing. Someone once observed that an oral (unwritten) agreement is worth the paper its written on. Also, putting the agreement in writing should have the effect of clearly defining what is being agreed to, which can save future disputes. Reasonable people can disagree on exactly what was said in the past, a problem alleviated by having the words actually written down.
Third, both parties are bound to act in the utmost good faith. This is especially important where the agreement is dealing with the parties assets. An agreement can be set aside or varied by the court when the parties have hidden assets from one another or even where one party may have a potential asset that is not disclosed to the other.
Finally, the courts will not enforce that has been obtained under duress, by undue influence over one of the parties, or by under unconscionable circumstances.
This article is for general information only, and should not be relied on as legal advice in any particular case. Consult a lawyer for advice on your case.