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DIY Family Law Agreements: Know When to Consult a Lawyer
It is becoming more common for spouses to attempt to resolve family law issues without lawyers.
The internet is filled with “do it yourself” guides to domestic contracts, such as marriage contracts, cohabitation agreements, and separation agreements. Despite seeming like an appealing way to save costs, “DIY family law” may lead to more issues that could have been prevented with the help of a lawyer.
The Law of Domestic Contracts
Domestic contracts are legislated under Ontario’s Family Law Act (FLA). The FLA prioritizes the terms of domestic contracts over contradictory provisions within the FLA. This demonstrates the importance that the law places on individuals’ choices to govern their own affairs.
Due to the significance the law places on spouses’ contractual choices, there are a number of formal requirements in order for a domestic contract to be valid. For example, it must be in writing, signed and witnessed properly.
The FLA also states that domestic contracts can be set aside if i) a party failed to disclose significant assets or debts existing when the contract was made, ii) a party did not understand the nature or consequences of the contract, or iii) if the contract does not conform to other aspects of contract law.
The Importance of a Lawyer
Without a lawyer to assist in the negotiation and drafting of a domestic contract, you can be left at a significant disadvantage.
Failure to Disclose Significant Assets or Debts
A spouse’s failure to disclose significant assets or debts can lead the other spouse to sign an agreement without a clear understanding of exactly what rights they are giving up. This will result in unfair contracts based on deception.
Lawyers are in a better position to negotiate these contracts, as they can arrange full and fair disclosure of all relevant financial information. Lawyers know where to look for financial information that might otherwise be hidden if you were taking a “DIY” approach.
Failure to Understand the Nature or Consequences of the Contract
If you have drafted a “DIY” contract and your spouse no longer wants to comply with the contract, they may attempt to get out of the contract by arguing that they did not understand the “nature or consequences” of the agreement.
However, the Supreme Court of Canada in Hartshorne v Hartshorne stated that courts should be reluctant to second-guess the agreement when the parties have sought independent legal advice. Lawyers help parties understand what they are signing, which ensures fairness and predictability in contract-drafting.
Lawyers also draft contracts in enforceable language. This protects your contract and saves money in the long-term.
Conforming to Contract Law
When negotiating a “DIY” contract, it is possible for one spouse to pressure the other into providing a more favourable deal. This can raise issues of duress, coercion and undue influence, which can lead to emotional damage and significant financial loss.
Negotiating a contract through lawyers ensures that the contract is made under proper circumstances. This puts the client in the best position to negotiate fair terms, free from duress, coercion or undue influence.
This post was written by Family Lawyer Matthew Villeneuve and Summer Student Aaron Ender.