Family Law Agreements: What They Are and Why They Matter

Family law agreements are a powerful and flexible tool for couples looking to manage their legal rights and responsibilities, either before, during, or after a relationship breakdown. When done properly, these agreements can reduce conflict, save time and costs, and provide certainty during what is often an emotionally difficult period.

What Are Family Law Agreements?

Family law agreements allow parties to resolve existing disputes or plan for potential future disputes on their own terms. Rather than relying solely on court proceedings, agreements give individuals greater control over outcomes and can be tailored to their unique family and financial circumstances.

The most common types of family law agreements include:

  • Marriage agreements (often referred to as “prenups”)
  • Cohabitation agreements for unmarried couples
  • Separation agreements
  • Agreements dealing with parenting arrangements, child support, and financial issues

These agreements are governed by both family law legislation and common law principles of contract law, meaning they must meet certain legal standards to be enforceable.

The Family Law Act

The Family Law Act (FLA) strongly encourages parties to resolve family disputes outside of court, including through negotiated agreements. This approach can save time, reduce costs, and give families more control over the outcomes of their disputes.

One key feature of the FLA is the equal treatment of married and unmarried spouses. As long as the parties meet the legal definition of “spouses,” both married and unmarried couples can use agreements to resolve property and financial matters.

Another important feature is the broad ability to make agreements. The FLA allows two or more people to enter into an agreement not only to settle an existing family dispute but also to address issues that could become disputes in the future, giving parties flexibility and certainty in planning their financial and family arrangements.

A family law agreement can still be legally binding even if there was no exchange of value between the parties (known as consideration), no lawyer or other professional was involved in drafting it, and the agreement was never formally filed with the court.

Parenting and Child Support Agreements

Agreements dealing with parenting arrangements and child support are treated differently:

  • These agreements are binding only if made after separation, or when the parties are about to separate and intend the agreement to take effect upon separation.
  • A court must set aside or replace a parenting agreement if it is not in the best interests of the child.
  • Child support agreements that deviate from the Child Support Guidelines may also be set aside by the court.

Spousal Support and Court Review

Courts generally respect agreements about spousal support unless the agreement is first set aside for reasons such as unfairness in how it was made or because it is significantly unfair.

In the leading case of Miglin v. Miglin, the court confirmed that when one party seeks spousal support different from what an agreement provides, the court must examine:

  1. The circumstances at the time the agreement was made; and
  2. The circumstances at the time the support claim is brought.

An agreement is given the greatest weight where:

  • It was negotiated freely, without coercion, pressure, or exploitation of vulnerability;
  • It substantially complies with the objectives of the Divorce Act; and
  • It continues to reflect the parties’ intentions and remains fair at the time of the application.

Agreements About Property and Debt

Under section 92 of the FLA, spouses may make agreements about the division of property and debt. Importantly, parties are allowed to opt out of the statutory property division scheme, as long as the agreement meets formal requirements:

  • It must be in writing
  • It must be signed by each spouse
    It must be witnessed by at least one person

Once a valid agreement exists, a court cannot make an order about the covered property or debt unless the agreement is first set aside.

Family law agreements can offer clarity, predictability, and peace of mind, but only when they are properly prepared, fairly negotiated, and based on full disclosure. Because these agreements can have long-lasting financial and personal consequences, obtaining experienced legal advice is often a wise investment.

If you are considering a family law agreement or have concerns about the enforceability of an existing one, a family law lawyer can help ensure your rights and interests are protected.

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