FP2 / Marriage, Separation, and Divorce
The traditional definition of marriage was: "The lawful union of one man and one woman to the exclusion of all others." As of July 20, 2005, the legal definition of marriage changed. The Civil Marriage Act received Royal Assent and the wording became: _ _ _ _ _
"Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."
A domestic contract allows the parties to: [LIST 3]
A domestic contract allows the parties to: [1] Define their rights and obligations [2] "Opt out" of most parts of the requirements of marriage legislation [3] Regulate their own financial arrangements
A _ _ _ _ separation is a process that can modify or lead to the end a marriage.
A legal separation is a process that can modify or lead to the end a marriage.
A _ _ _ _ _ _is a contract made between a married couple, who have separated or are about to separate, in which they agree to live apart.
A separation agreement is a contract made between a married couple, who have separated or are about to separate, in which they agree to live apart.
What do the principal covenants of separation agreements address?
A separation agreement will usually include covenants dealing with: [1] A promise to live separate and apart [2] A promise not to molest (that is, interfere in the life of) the other party [3] One spouse's financial support of the other [4] Custody of and access to children [5] Child support [6] The possession and division of some or all matrimonial property (the defi nition of property subject to division will depend on provincial legislation) [7] Mutual discharge and release [8] The duration and termination of the agreement
What is a separation of property regime?
A separation of property regime means that property is owned strictly according to title. All property, including property owned before cohabitation or marriage, any increases in value and property acquired during the relationship, is owned strictly according to title.
A _ _ _ _ separation is where two spouses simply live apart for a period of time and does not involve the intervention of a court.
A trial separation is where two spouses simply live apart for a period of time and does not involve the intervention of a court.
A _ __ _ _ _ allows an individual who doesn't actually own the property to make a partial claim on the basis that the owner of the property holds a share of it in trust for them.
A trust claim allows an individual who doesn't actually own the property to make a partial claim on the basis that the owner of the property holds a share of it in trust for them.
A voidable marriage is a marriage that is _ _ _ _ _.
A voidable marriage is a marriage that is valid until annulled by a decree granted during the life of the spouses. The facts, although existing at the time of marriage, are not ascertainable until after the parties have cohabited.
COMMON LAW MARRIAGE in certain circumstances, one partner may have the right to make a claim to an interest in property by way of a trust claim.
ANSWER: TRUE
TRUE OR FALSE? At present, partners in a common-law relationship have no rights to property, or the value of property, under statute (by law).
ANSWER: TRUE
TRUE OR FALSE? If the marriage did not exist, rights under the marriage cannot be claimed.
ANSWER: TRUE
All jurisdictions permit domestic contracts. Such contracts are popularly known as _ _ _ _ _.
All jurisdictions permit domestic contracts. Such contracts are popularly known as pre-nuptial agreements or "prenups".
What is an Interim Separation Agreement?
An interim separation agreement provides for the ongoing daily needs of the parties and makes provision for such things as: [1] Mortgage payments [2] Spousal support, if necessary [3] Custody of, access to, and support for the children
As a general rule, heterosexual common-law spouses have had rights to maintenance or support. These same rights are being made available to same-sex couples. These rights can depend upon: [1] The length of the relationship [2] The character of the relationship [3] If the couple has children
As a general rule, heterosexual common-law spouses have had rights to maintenance or support. These same rights are being made available to same-sex couples. These rights can depend upon: [1] The length of the relationship [2] The character of the relationship [3] If the couple has children
What are the consequences of child support payments in relation to income tax?
Child support paid under orders or agreements made or varied after April 30, 1997 is not taxed as income of the receiving parent nor is it deductible from the income of the paying parent. Child support paid under agreements made before May 1, 1997 is treated in the same manner as spousal support payments.
What is the difference between annulment and divorce?
DIVORCE A divorce decree dissolves or terminates an existing valid marriage on the basis of a state of affairs which has arisen since the marriage began. ANNULMENT An annulment or nullity decree declares that a marriage was null and void from the start because of facts existing at the time of marriage. Annulments fall within both federal and provincial jurisdictions.
What are the types of Domestic Contracts?
Domestic contracts include: [1] Cohabitation agreements [2] Marriage contracts [3] Separation agreements
What is a waiver of support?
Domestic contracts may also include a waiver of support if the marriage ends. When both parties have significant assets, no ongoing child-rearing responsibilities and similar incomes, it may be appropriate to waive any future right to support. However, it is rarely appropriate in circumstances where one party is financially dependent on the other or where children have been born or adopted into the relationship.
What areas of marriage fall under provincial jurisdiction?
Each province and territory is responsible for the legislation for "the solemnization of marriage in the province." This means that the provinces can establish their own preconditions to the marriage ceremony allowing for some variation from province to province.
What are the consequences of maintenance/spousal support payments in relation to income tax?
Spousal support payments are deductible from the income of the spouse making such payments and are taxable to the spouse receiving them.
What is the retroactive provision for voluntary spousal support payments?
The Act allows the deduction of payments by the payor and their inclusion into income by the recipient back to the beginning of the prior calendar year but not further. Therefore, a spouse with an obvious spousal obligation can begin to make "grossed up" payments to account for the income tax implications or a limited period of time but that party's lawyer must ensure that at least an interim agreement is in place at the appropriate time so that his or her client (the payor spouse) receives the tax deduction entitled to.
The annulment of a marriage occurs when _ _ _ _ _.
The annulment of a marriage occurs when the courts declare that it is invalid.
What are the formalities of domestic contracts?
There is no specific form required for a domestic contract as a matter of common law. Although an oral agreement may be legally valid, it cannot be relied upon. In many provinces, a domestic contract is unenforceable, unless it is: [1] Made in writing [2] Signed by both parties [3] Witnessed
To qualify for tax deductibility, the separation agreement must be _ _ _ [LIST 2 REQUIREMENTS] _ _ _
To qualify for tax deductibility, the separation agreement must be in writing and must specify that the spouses will live apart.
_ _ _ _ claims are not claims under family law, but are claims to an interest in property under _ _ _ __ law.
Trust claims are not claims under family law, but are claims to an interest in property under common law.
Who has jurisdiction for marriage?
Under the British North America Act, 1867, the federal government has legislative responsibility for marriage and divorce. Therefore, the provisions for marriage and divorce are uniform across Canada.
List three types of domestic contracts?
[1] Cohabitation agreements [2] Marriage contracts [3] Separation agreements
The tax deductibility of payments is subject to specific statutory requirements. Spousal support payments are dealt with under the Act for people who are: [LIST 3]
[1] Divorced [2] Judicially separated [3] Separated under a written separation agreement containing provisions for their support or the support of children of the marriage.
A domestic contract may be rendered unenforceable due to: [LIST 4 REASONS]
[1] Fraud [2] Duress [3] Mutual mistake [4] The contract itself being considered patently unfair
List 4 reasons why a marriage may be voidable?
[1] Is impotent [2] Cannot otherwise consummate the marriage [3] Did not consent, or [4] The marriage did not comply with statutory formalities
List 4 reasons why a marriage may be found void?
[1] It is bigamous [2] It is within the prohibited degrees of consanguinity or affinity [3] One of the parties is under age [4] One of the parties lacks the mental capacity to marry
Separation agreements usually deal with: [List 3]
[1] Ownership and division of property [2] Custody and support of children [3] Future support payments
List the 5 requirements for a legally enforceable contract:
[1] There is a valid offer and a valid acceptance. [2] Parties to the agreement are legally competent. [3] Mutual consideration (or a contract "under seal") is in place. [4] There is a genuine intention to create legal relations. [5] Contract has a lawful purpose.
What are the two categories of separation?
[1] Trial [2] Legal
[NOTES / ANNULMENT OF A MARRIAGE] If the marriage is voidable, the marriage existed until declared void and the partners have the rights they would have under marriage.
[NOTES / ANNULMENT OF A MARRIAGE] If the marriage is voidable, the marriage existed until declared void and the partners have the rights they would have under marriage.
[NOTES / ANNULMENT OF A MARRIAGE] The nullity of a marriage or civil union, for whatever reason, does not deprive the children of the advantages secured to them by law or by the marriage or civil union contract, and the rights and duties of fathers and mothers toward their children are unaffected by such nullity. Among other things, parents are responsible for the protection, care and support of their children.
[NOTES / ANNULMENT OF A MARRIAGE] The nullity of a marriage or civil union, for whatever reason, does not deprive the children of the advantages secured to them by law or by the marriage or civil union contract, and the rights and duties of fathers and mothers toward their children are unaffected by such nullity. Among other things, parents are responsible for the protection, care and support of their children.
[NOTES / BASICS OF MARRIAGE, SEPARATION AND DIVORCE] All provinces and territories: [1] Make provision for religious and civil marriage ceremonies [2] Maintain a list of prohibited degrees of consanguinity or affinity, which identifies those who are forbidden to marry because of a blood relationship or other relationship [3] Require witnesses at the marriage ceremony [4] Specify the officials or individuals who are authorized to conduct a marriage ceremony [5] Set a minimum age at which people may marry [6] Require the parties to have a domicile in the province in order to get married there, in most cases.
[NOTES / BASICS OF MARRIAGE, SEPARATION AND DIVORCE] All provinces and territories: [1] Make provision for religious and civil marriage ceremonies [2] Maintain a list of prohibited degrees of consanguinity or affinity, which identifies those who are forbidden to marry because of a blood relationship or other relationship [3] Require witnesses at the marriage ceremony [4] Specify the officials or individuals who are authorized to conduct a marriage ceremony [5] Set a minimum age at which people may marry [6] Require the parties to have a domicile in the province in order to get married there, in most cases.
[NOTES / COHABITATION AGREEMENTS & MARRIAGE CONTRACTS] The main reason for drawing up cohabitation agreements and marriage contracts is to provide for division of property if the marriage or relationship breaks down. The most straightforward way is to state that all property remains the separate property of each individual and to provide in the contract for a separation of property regime. While it is straightforward, a separation of property regime is not necessarily the ideal alternative for parties to a marriage contract. A lot depends on the condition and circumstances that each party is in at that point in time and the couple's plans for the future. Parties have significant freedom to craft an agreement that meets their particular needs and creative drafting is often found.
[NOTES / COHABITATION AGREEMENTS & MARRIAGE CONTRACTS] The main reason for drawing up cohabitation agreements and marriage contracts is to provide for division of property if the marriage or relationship breaks down. The most straightforward way is to state that all property remains the separate property of each individual and to provide in the contract for a separation of property regime. While it is straightforward, a separation of property regime is not necessarily the ideal alternative for parties to a marriage contract. A lot depends on the condition and circumstances that each party is in at that point in time and the couple's plans for the future. Parties have significant freedom to craft an agreement that meets their particular needs and creative drafting is often found.
[NOTES / COMMON LAW MARRIAGE OR COHABITATION] The term common-law marriage is used to describe a variety of relationships. Common-law marriage does not require a marriage ceremony, marriage licence, or any other formal aspect of marriage. What is required is that the parties come to a mutual understanding, not necessarily in written form, in which they consent to enter into a permanent matrimonial-type relationship, exclusive of all others. The relationship is in all aspects identical to a marriage, but without a marriage ceremony. If the parties separate, they do not need a divorce
[NOTES / COMMON LAW MARRIAGE OR COHABITATION] The term common-law marriage is used to describe a variety of relationships. Common-law marriage does not require a marriage ceremony, marriage licence, or any other formal aspect of marriage. What is required is that the parties come to a mutual understanding, not necessarily in written form, in which they consent to enter into a permanent matrimonial-type relationship, exclusive of all others. The relationship is in all aspects identical to a marriage, but without a marriage ceremony. If the parties separate, they do not need a divorce
[NOTES / CONTRACT LAW] [1] In some provinces, the common law has been modified by statute and consideration is not always required in domestic contracts. [2] However, many separation agreements are "under seal", eliminating the need for consideration. "Under seal" technically means that the parties have affixed their seal to a written contract as an indication that they accept the terms of the contract, in which case no consideration is required. In the past, seals used to be made of red wax with family emblems, coat of arms or rings pressed into the wax. Today, stating that a contract is under seal is adequate.
[NOTES / CONTRACT LAW] [1] In some provinces, the common law has been modified by statute and consideration is not always required in domestic contracts. [2] However, many separation agreements are "under seal", eliminating the need for consideration. "Under seal" technically means that the parties have affixed their seal to a written contract as an indication that they accept the terms of the contract, in which case no consideration is required. In the past, seals used to be made of red wax with family emblems, coat of arms or rings pressed into the wax. Today, stating that a contract is under seal is adequate.
[NOTES / DOMESTIC CONTRACTS] [1] In order to be enforceable, the agreement must be deemed to be fair and based on full and accurate financial disclosure. [2] What does Independent Legal Advice (ILA) refer to? Although not a formal statutory requirement, for an agreement to meet the threshold of a valid and legally binding domestic contract under provincial legislation, it is important for both parties to have ILA. This means that if the agreement is later challenged, the party wishing to set aside the agreement, in whole or in part, cannot claim that they did not understand their legal rights.
[NOTES / DOMESTIC CONTRACTS] [1] In order to be enforceable, the agreement must be deemed to be fair and based on full and accurate financial disclosure. [2] What does Independent Legal Advice (ILA) refer to? Although not a formal statutory requirement, for an agreement to meet the threshold of a valid and legally binding domestic contract under provincial legislation, it is important for both parties to have ILA. This means that if the agreement is later challenged, the party wishing to set aside the agreement, in whole or in part, cannot claim that they did not understand their legal rights.
[NOTES / SEPARATION AGREEMENTS / CHILD SUPPORT] As with custody and access, the courts are not bound by any spousal agreement regarding child support and will override an agreement that is not in the interests of the children. However, in practice, most separation agreements are not subject to court scrutiny, except when a variation (see below) is requested.
[NOTES / SEPARATION AGREEMENTS / CHILD SUPPORT] As with custody and access, the courts are not bound by any spousal agreement regarding child support and will override an agreement that is not in the interests of the children. However, in practice, most separation agreements are not subject to court scrutiny, except when a variation (see below) is requested.
[NOTES / SEPARATION AGREEMENTS / COVENANTS / TO LIVE SEPARATE & APART] This covenant is required by Canada Revenue Agency, if the parties intend to avail themselves of the income tax consequences of support payments.
[NOTES / SEPARATION AGREEMENTS / COVENANTS / TO LIVE SEPARATE & APART] This covenant is required by Canada Revenue Agency, if the parties intend to avail themselves of the income tax consequences of support payments.
[NOTES / SEPARATION AGREEMENTS / CUSTODY & ACCESS] Most jurisdictions allow spousal agreements regarding child custody and access to their children. However, the courts can intervene and override such agreements in the best interests of the children or if there has been a material change in the financial circumstances of the children, or one or both of the parties.
[NOTES / SEPARATION AGREEMENTS / CUSTODY & ACCESS] Most jurisdictions allow spousal agreements regarding child custody and access to their children. However, the courts can intervene and override such agreements in the best interests of the children or if there has been a material change in the financial circumstances of the children, or one or both of the parties.
[NOTES / SEPARATION AGREEMENTS / DIVISION OF MATRIMONIAL PROPERTY] In several provinces, matrimonial property legislation recognizes the right of separating or divorced spouses to make their own arrangements for property, which may be different from those required under statutory provisions for the division of their joint and separate property.
[NOTES / SEPARATION AGREEMENTS / DIVISION OF MATRIMONIAL PROPERTY] In several provinces, matrimonial property legislation recognizes the right of separating or divorced spouses to make their own arrangements for property, which may be different from those required under statutory provisions for the division of their joint and separate property.
[NOTES / SEPARATION AGREEMENTS / MUTUAL DISCHARGE & RELEASE OF CLAIMS FOR SUPPORT] A covenant in a separation agreement, in which the spouses mutually release each other from all claims for support, is generally upheld, but the courts have sometimes intervened, particularly if one spouse is in need and is obtaining social assistance. Generally speaking, the courts have considered it in the public interest that the spouse with greater assets and earning capacity, rather than the government, should maintain the other spouse.
[NOTES / SEPARATION AGREEMENTS / MUTUAL DISCHARGE & RELEASE OF CLAIMS FOR SUPPORT] A covenant in a separation agreement, in which the spouses mutually release each other from all claims for support, is generally upheld, but the courts have sometimes intervened, particularly if one spouse is in need and is obtaining social assistance. Generally speaking, the courts have considered it in the public interest that the spouse with greater assets and earning capacity, rather than the government, should maintain the other spouse.
[NOTES / SEPARATION AGREEMENTS / NOT TO MOLEST] This covenant is intended to protect the right of each party to live a separate life, free from interference by the other party.
[NOTES / SEPARATION AGREEMENTS / NOT TO MOLEST] This covenant is intended to protect the right of each party to live a separate life, free from interference by the other party.
[NOTES / SEPARATION AGREEMENTS / SPOUSAL SUPPORT] Support covenants include the amount of support to be paid to the spouse, the duration of the payment schedule, and an indexing formula, usually based on the Consumer Price Index, for cost-of-living increases. In some cases, the support provision may be a waiver of support by both parties. This waiver may be considered final and unchangeable despite radical changes in the circumstances of the parties. Courts, however, tend to "open" support agreements many years after they have been entered into, and unilaterally alter support obligations if they perceive that the supplicant spouse has been put, or is, in a state of rank unfairness.
[NOTES / SEPARATION AGREEMENTS / SPOUSAL SUPPORT] Support covenants include the amount of support to be paid to the spouse, the duration of the payment schedule, and an indexing formula, usually based on the Consumer Price Index, for cost-of-living increases. In some cases, the support provision may be a waiver of support by both parties. This waiver may be considered final and unchangeable despite radical changes in the circumstances of the parties. Courts, however, tend to "open" support agreements many years after they have been entered into, and unilaterally alter support obligations if they perceive that the supplicant spouse has been put, or is, in a state of rank unfairness.
[NOTES / SEPARATION AGREEMENTS / THE DURATION AND TERMINATION OF THE SEPARATION AGREEMENT] A separation agreement may contain a provision that in the event of a subsequent divorce, the terms of the original separation agreement remain in force. The agreement may also contain a provision that the agreement will be terminated if the parties reconcile and once again cohabit for more than 90 days.
[NOTES / SEPARATION AGREEMENTS / THE DURATION AND TERMINATION OF THE SEPARATION AGREEMENT] A separation agreement may contain a provision that in the event of a subsequent divorce, the terms of the original separation agreement remain in force. The agreement may also contain a provision that the agreement will be terminated if the parties reconcile and once again cohabit for more than 90 days.