Durable Domestic Agreements
Durable domestic agreements satisfy criteria on several fronts to avoid being challenged and all or part of the contract being set aside. There are many factors which can influence the durability of a family contract: from meeting the proper legal format to satisfying the appropriate financial disclosure to how you feel about the final version of the document. To understand the complexity of these factors, here are five to consider.
First, durable domestic agreements need to meet the statutory definition of and allowable terms for that type of domestic contract. There are also best practices involving those contracts which amend or rescind all or part of an existing agreement. There should be specific reference in the separation agreement to the Ontario Family Law Act or as it relates to other domestic contracts. For example, a cohabitation agreement may specify the moral training of a child but not the right to decision making. Further every domestic contract must be in writing, signed by each party before a witness, and dated.
Clear Unambiguous Language
Another critical threshold to meet to obtain a durable domestic contract: agreed provisions are written in clear, unambiguous language and consistent in their application throughout the agreement. For example, if there is unlimited spousal support ongoing until death of the recipient then there should be no support relinquishment at the end of the document. Definitions for words should make sense in the context of the provisions where the words are used in the agreement. Inserting excerpts from relevant statutes at the back of the agreement provides important guidance to the parties in the future when they may turn to the agreement for assistance.
Third, the negotiations of durable domestic agreements are considered private out of court settlement discussions. Contemporaneous notes taken during discussions and the safeguarding of the series of draft versions showing each change are helpful evidence should a dispute arise in the future. One of those disputes is often whether both parties were in fact joint authors to the contract to defeat a later claim that one did not know about the inclusion of certain provisions.
The exercise of each party completing and exchanging ‘full and frank’ financial disclosure satisfies the due diligence component of negotiating an agreement. Being fully informed of the value of an asset specifically excluded from being shared with the other at the time the contract was developed and executed ensures another criterion was met. Preserving the several draft financial statements is further evidence of participation in the development of the final terms of the agreement.
Fair to Each
Although a very difficult concept to define, the parties independently come to the conclusion that the terms of the durable domestic agreements are fair to themselves and to each other. Another common reflection at the conclusion of the negotiation is a feeling of a bittersweet result. Each signatory to the agreement may feel that the agreement was balanced in that neither party ended up getting everything they wanted. No agreement should be signed if you are not satisfied with the provisions of the proposed agreement.
Spouses who chose to negotiate using the collaborative process may feel greater satisfaction at the conclusion of negotiation. Their driving motivation was to assist the other spouse to achieve their needs and wants. Transparency, the building of trust, effective communication guidelines, and specifically trained lawyers together with jointly retained advisory tea, as needed, can mindfully respond to the spouses’ directions and needs.
Lastly, durable agreements are entered into by each party voluntarily without duress, coercion, fraud, or undue influence. The lawyer’s careful questioning and factual investigation uncover their client’s motivation to enter into the agreement. Lawyers are taught to be sensitive to non-verbal communication between spouses and to sensitively probe for domestic violence issues.
Each family law lawyer will explain to their client the nature of their domestic agreement and the consequences of the provisions. They will explain the financial disclosure. Once the lawyer is satisfied that the client understands the agreement and is signing voluntarily, the lawyer will sign the Certificate of Independent Legal Advice located at the back of the contract. A signed Certificate does not necessarily mean that the lawyer is content that the provisions are enforceable or that they are in the client’s best interests. Providing independent legal advice is advice only with no role to represent that client’s interests or to negotiate revisions on their behalf.