2 Unknown
COMMERCE & BUSINESS
OADM 1327
FAMILY LAW COURSE MANUAL
PREPARED BY: JULIE CROTHERS
DOUGLAS COLLEGE
CC BY-NC 4.0
INTRODUCTION
Family Law refers to a specialized area of law that deals with matters relating to the creation or dissolution of the “family” unit. It includes things such as adoption; marriage or cohabitation agreements; child support; annulments; the break-up of common law relationships; and divorce.
While there are some positive aspects of family law such as adoption, most of the focus of practice in this area is on the legal rights of individuals when a relationship falls apart.
A legal administrative assistant who works in this area of law will be assisting a lawyer who is helping their client through an emotionally charged period of life. The purpose of this textbook is to teach basic procedures focusing mainly on divorce procedures in the Supreme Court of British Columbia.
As in every other area of law, to become a good legal administrative assistant in a family law practice means more than just knowing the procedures. The assistant must understand the underlying reason why certain procedures are followed, and why certain information is requested.
Probably more than in any other area of law, the assistant needs a basic understanding of the historical development of the legal principles and society’s ideas and biases about family and marriage.
The purpose of the legal system in family law is to define the legal rights of people involved. When a “family” relationship collapses, the role of the legal system is to separate the legal interests of the people involved. However, unlike other areas of law, the legal interests of the people involved may continue after the end of the relationship.
For example, in a personal injury claim, one party may have a claim against another person who has injured them. They sue each other; the court determines the legal claim; and the parties separate, never to see each other again. In conveyancing, one party is selling property to another party. They enter into a contract; the lawyers prepare the required documents; title is transferred; and payment is made. The parties separate also never to see each other again.
However, when a marriage dissolves, the parties may have to pay child support or relate to each other over parenting responsibilities for years to come. This is complicated by the fact that emotions are involved, not just the emotions of the individuals involved in the matter, but also those of their families and their friends. Each person involved brings their own personal feelings and beliefs to the situation. These feelings and beliefs are influenced by their own expectations, and religious and personal viewpoints which may or may not coincide with the legal principles.
To better understand the area of family law, a legal administrative assistant should have some knowledge of the historical and societal background of family law. This chapter provides a brief simplified overview of the historical background along with the changes in societal views regarding family law.
As with all areas of law, family law derives from the common law in England, so we begin by looking at the significance of England’s history on the development of our family related laws.
Prior to the reign of King Henry the VIII, the Roman Catholic Church, through the Vatican in Rome, had a great influence on the monarchy and laws enacted by the monarchy. King Henry the VIII came into power in 1502. Between 1525 and 1533, King Henry had a falling out with the Vatican Family Law—Chapter 1
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over his desire to divorce his first wife, Catherine, to marry Anne. The Catholic Church frowned upon divorce and was unwilling to grant it.
King Henry decided to break from the Catholic Church. England passed a series of laws limiting and banning the role of the Catholic Church in its law making, and seized much of the property of the church. King Henry, separated the Church of England from the Catholic Church. Through King Henry’s actions, the idea of the separation between church and state was formed. This idea continues through to today.
(King Henry was also a big proponent of divorce through the separation of body and head, but this idea has not endured.)
LEGISLATIVE CONCEPT:
Separation of religion and state. Legislation should not be enacted to support a particular religious belief. Legislators are expected to enact laws to reflect the needs of society without regard to their own religious beliefs. Throughout the development of family law, competing religions have opposed certain changes on religious grounds. However, legislators should not take into account purely religious beliefs or ideology, but should look at the underlying practical implications of their decisions. One good aspect of this principle is that all religions are theoretically treated equal. Had the separation of religion and state not come about, most likely one religion would determine the laws in Canada, and other religions would be left out.
While the church and state are separate, our laws do reflect the norms of society. So, while religious tenets are not reasons for enacting legislation, they do affect the norms of society. While King Henry broke away from the Catholic Church, Christian beliefs were a major influence on the individuals who made up society.
The Christian practice of monogamous marriage for life was accepted as the norm and divorce was frowned upon. Despite King Henry’s break from the Catholic Church, because of the religious bias against divorce, it was still not a common option in the 1800s when Canada was settled.
MONOGAMOUS MARRIAGE:
Because monogamous marriage was the norm, a person can only be married to one other person at a time.
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Divorce was viewed as a remedy only for rare circumstances such as adultery. It carried with it negative connotations which remain to this day. The idea of maintaining a marriage was more important than the idea of individual needs or wants. Keep in mind, the lifespan of the average person was also shorter.
At the time Canada was created, the concept of marriage was different than it is now. Men provided for the family, and women bore the children and maintained the home. In fact, men and women were not considered equal. Men were considered superior with most of the laws of society favouring males. When people married, they became one, but the rights resided with the male who was the head of the household. If an unmarried woman owned land (not common), it became vested with the husband on marriage. Married women were not allowed to own land.
DUTY TO PROVIDE:
Because women were economically dependent on their husbands for survival, society viewed it as the man’s duty to care for his wife and children. In order to survive, women needed to be married as they had few opportunities for financial independence otherwise.
Men had the right to vote, own property, and hold public office, while women could not. Because all the benefits and rights in society favoured the men, women needed to be married to improve their life. People married for economic reasons, not romantic ones. Women’s rights and children’s rights were virtually non-existent. (Remember, it was accepted practice at one time in England to shove a small child up a chimney as a cleaning method.)
Earlier in England, some legislation had passed allowing a husband to obtain a divorce on the grounds of his wife’s adultery, and a wife to obtain a divorce if she could establish that her husband had committed incestuous adultery, rape, sodomy, bestiality, bigamy, or adultery coupled with cruelty or desertion. Wives proven to have committed adultery were not entitled to spousal support, and husbands had no right to apply for support in any circumstance.
This was the situation at confederation. After Canada was founded, the laws regarding marriage and divorce slowly began to change.
THE CONSTITUTION OF CANADA/DIVISION OF POWERS
In the late 1800s, the country of Canada did not exist; rather there were several provinces that came together into a confederation which would become Canada. Without going into a lot of historical detail, keep in mind that the provinces had to choose to join confederation and did so at different times. Each province already had its own form of local government. Some provinces had enacted or adopted the English laws for divorce. Other provinces provided no means for divorce.
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Divorces, when allowed, were granted by having parliament pass a statute declaring two people divorced.
To be enticed to join what would become Canada, the provinces had to see the benefit of joining while maintaining their own authority over local concerns.
The British North American Act 1867 (“BNA”) was passed to define what the federal government would be in charge of for all the members of the country, and what the local provinces would remain in charge of. The BNA later became the Constitution Act which to this day lays out the division of powers between the provinces and the federal government.
Under s. 91(26) of the BNA, the federal government was given control of “marriage and divorce”.
Keep in mind that divorce was not considered a very serious concern because it was uncommon in society at that time. Marriage was also considered a simple matter because they felt the current situation would just remain.
Under s. 92(12) of the BNA, the province was given control of the “solemnization of marriage”.
The provinces wanted to have control of marriage solemnization (ceremonies/licenses). This made sense because the provinces were made up of scattered settlements. They wanted the right to appoint individuals in their local areas to perform marriage ceremonies and maintain those records.
This division has led to the unusual situation now where the federal government defines what constitutes marriage, but the provinces provide the marriage licenses.
The other major power which would become significant in family law was jurisdiction over
“property and civil rights” which was given to the province under s. 92(13). The provinces have jurisdiction over division of all property other than immovable property located on a First Nation reserve which falls under the jurisdiction of the federal government pursuant to s. 91(24) of the
BNA.
GROWTH OF WOMEN’S PROPERTY RIGHTS
At the time that Canada was created, women were expected to marry and were dependent on their husbands for financial security. Since women lacked the right to own property when married, they lacked their own financial independence. Once married, they were at the mercy of their husbands no matter how poor the relationship became, or how abusive the man became. Divorce was not available.
There were also increasing occurrences of men deserting their families. Women were left with no property or means of financial support. However, they could not get divorced which meant they remained married by law. Since only monogamous marriage was legal, they could not remarry and remained unable to provide for themselves and for the children they were left with when the men deserted.
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To address this growing problem, the provinces began passing legislation slowly giving women some right over property. They could hold property in their own name; however, society’s practice made this minimally effective. Most women did not have property. If a woman did own property, if she married the property was transferred to her husband’s name. A woman had no claim on property if it was held in the husband’s name. The other issue was that each province had different rules regarding ownership of property.
CHANGE IN OWNERSHIP OF PROPERTY:
Both men and women could own property in their own name.
Because of society’s belief in a husband’s duty to provide and raising concerns over the increasing numbers of women and children being deserted, provinces created statutes that imposed a unilateral obligation on the guilty husband to provide maintenance for his innocent wife in the event of a marriage breakdown.
Support to the wife was only available if it could be proven that the husband abandoned the marriage or committed adultery. If the wife left the marriage, she was entitled to nothing.
HISTORICAL SUPPORT PAYMENTS:
Support payments were required from men who abandoned their families or who committed adultery causing a breakdown of the marriage.
While support payments were now available, there was no consistency in the amount of support from province to province. The availability of support was an improvement for women, but the amount of the support was often insufficient.
During both World Wars, more women began to work outside the home in jobs traditionally held by men. After the Second World War, many women, who had tasted financial independence, remained in the workforce. While making less money than men, women were no longer dependant on remaining married for survival and, as more marriages began to break down, demand for divorce increased.
DIVORCE ACT 1968 and 1985
The federal government passed the first Divorce Act in 1968, finally unifying the rules for divorce across Canada. The Divorce Act was a controversial statute with many conservative and religious groups in Canada arguing that it would lead to the destruction of families if divorces were easy to obtain. The idea that marriage was for life was a strongly held belief.
To appease these groups, certain provisions were enacted to prevent quick and heat-of-the-moment divorces. Except for cases of adultery or abuse, couples had to have been separated for three years as grounds for divorce.
With the passage of the Act, the laws finally became equal for men and women. The grounds for divorce applied equally for either gender. As well, either spouse was entitled to support. Divorce Family Law—Chapter 1
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also became ‘no fault’, which meant the reason for the marriage breakdown no longer affected entitlement to property or to support.
In 1985, the Divorce Act was revised so that couples needed to separate for only one year instead of for three years.
EQUALITY OF RIGHTS
In the case of divorce, the laws now apply equally to both spouses.
The next change to Canada’s laws regarding marriage came in 2005 when the right to marry was extended to same sex couples, followed a few years later by their right to divorce.
CHILDREN’S WELFARE
While a duty to provide for one’s children has existed as part of society’s expectations for a long time, it only considered the obligation to provide for the necessities of life. The physical, emotional, and psychological well-being of children took longer to become reflected in law. In fact, it has only been since the 1970’s that child abuse was first recognized as what was known then as Battered Child Syndrome. Since then, our laws have developed in all areas to focus on the best interests of the children.
In family law, the welfare of the children is dealt with through the rules on child support, parenting arrangements and contact.
CHILD’S BEST INTERESTS
The general principle applied when deciding on child support, parenting arrangements and contact is that the best interests of the child is the only consideration.
PROVINCIAL FAMILY LAW DEVELOPMENTS
Divorce is a remedy available only to married couples. As such, the rules for support, child support, parenting time and decision-making authority under the Divorce Act, 1985 are only available to married couples. However, not all relationship breakdowns involve individuals who are married. Individuals could live together for years in a marriage-like relationship or have children without being married.
Because the Constitution gives jurisdiction over civil rights to the provinces, the provinces can also pass legislation regarding support, parenting arrangements and contact rights involving both married and unmarried individuals. Since they have jurisdiction over property rights, they can pass legislation regarding the division of property as well.
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SUMMARY OF CURRENT FAMILY LAW IN BRITISH COLUMBIA Federal
• Legislation defining who may be married
• Grant divorce to married couples
o Support payments
o Parenting time and decision-making
• The Divorce Act does not provide for the division of matrimonial property.
• The Family Homes on Reserves and Matrimonial Interests or Rights Act provides a process for dealing with family homes on a First Nation reserve and applies to both married and unmarried spouses who live on a reserve where at least one of the parties is a First Nation band member, entitled to be a band member, or a status Indian.
Provincial
• Legislation defining who may perform marriage ceremonies and grant marriage licenses
• Provide support payments, parenting arrangements (the allocation of parental responsibilities and parenting time), and contact rights to married or unmarried individuals
• Divides property for married or unmarried individuals (other than family homes on First Nation reserve)
Note that married individuals can seek the same support, parenting arrangements and contact rights through both federal and provincial legislation.
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Use these questions to check your understanding of Chapter 1. The answers can be found in the data file named Ch1ReviewKey.docx Ask your instructor where to find this file.
1. What is the main focus of family law?
2. How are the legal interests of those involved in a family law case different from the legal interests of those involved in other areas of law?
3. How did Henry VIII’s wish to divorce Catherine of Aragon impact church and government in England?
4. What is the reason that the federal Marriage Act allows Canadians to marry only one spouse?
5. At the time of confederacy (when the provinces joined together), what was an acceptable ground for a man to get a divorce? for a woman?
6. Describe the rights and duties of married men and married women at the time Canada was created.
7. What powers over marriage and divorce did the passage of the BNA give the federal and provincial governments?
8. What increasing circumstance led to the change in women’s rights to own property?
9. Under what circumstances were men required to pay support to their wives?
10. What effect did World Wars I and II have on marriage? Why?
11. How did the Divorce Act of 1968 change the rights of spouses who wished to divorce?
12. What change to divorce did the Divorce Act of 1985 make?
13. What impact did the recognition of the Battered Child Syndrome have on divorce law?
14. Explain why most unmarried couples with children depend on provincial law instead of federal law to help them when their relationships end. When would unmarried couples require federal law to assist them with division of property?
15. Under what circumstances would a married couple who have separated choose to apply to the more expensive BC Supreme Court to determine parenting responsibilities rather than to the less expensive Provincial Court of BC?
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MARRIAGE AND MARRIAGE RELATED AGREEMENTS
INTRODUCTION
Most couples enter into marriage or marriage-like relationships without ever engaging the services of a lawyer. However, sometimes a couple will retain a lawyer to draft agreements to pre-define their legal obligations to each other in case the relationship ends.
Although lawyers are rarely involved in the process of people getting married, a legal administrative assistant working in family law should have an understanding of the concept of marriage and the legislation defining marriage.
This chapter will begin by discussing the concept of marriage and marriage-like relationships, the development of same-sex marriage, and the legislation governing marriage. Since couples do hire lawyers to draft agreements defining their rights if the relationship ends, the chapter then will discuss the rights and obligations spouses have to each other. Finally, you will be asked to draft a marriage agreement.
LEGAL CONCEPT OF MARRIAGE
When the British North America Act was passed, the English concept of marriage was adopted by the Canadian federal government and later by the provincial governments. Marriage was defined by common law as the union of a man and a woman. Historically, marriage followed the Christian belief that marriage was between one man and one woman. In the eyes of the law it was treated as a contract that carried with it legal rights and obligations.
The idea that marriage was a contract resulted in actions where individuals would sue for breach of promise to marry. Today’s common belief that someone gets to keep an engagement ring if the other person breaks off the wedding comes from the old English cases on breach of promise to marry which were decided on contract law. The engagement ring was treated as a deposit.
Times have changed and in British Columbia breach of promise to marry is no longer actionable.
An engagement ring is generally returned to the party who purchased it. ( Zimmerman v. Lazere, 2007 BCSC 626)
Societal Legal Rights
Our society has granted individuals who are married certain types of legal rights. Historically, having children outside of marriage was not accepted as appropriate. Therefore, it was in the interest of our society to encourage and support marriage as a means of maintaining the population of society. For example, married couples were given beneficial tax credits and entitlement to their spouse’s government pensions if their spouse predeceased them.
An example of societal legal rights given to married couples was the right that one spouse could make personal choices for another spouse who was unable to make decisions for themselves due to circumstances such as a medical emergency.
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Marital Legal Rights and Obligations
Society also recognized legal rights and obligations of married individuals. Spouses were responsible for each other’s financial well-being. This responsibility eventually led to a spouse’s entitlement to spousal support and division of family property if the marriage ended.
Common-law Marriage
While marriage was historically the only acceptable way in the eyes of society for two individuals to live together, we have generally come to accept the idea that two individuals can have a marriage-like relationship without being married.
The development of rights for individuals who lived together without being married grew slowly.
However, many of the rights given to married couples have now been extended to common law couples, and when a common law relationship ends, common law spouses are entitled to spousal support and the right to the division of property.
Many societal rights such as income tax benefits have also now been granted to common law spouses.
Same Sex Marriage
The English definition of marriage was a union for life exclusively between a man and a woman.
When Canada adopted English law, this definition was never reconsidered by our lawmakers until same sex couples demanded the right to be married.
The desire of same sex couples to marry was met with opposition from certain religious and conservative groups, and because of the opposition, the federal government made no effort to redefine the meaning of marriage to include them.
As a result, court cases were filed in courts across Canada. These were provincial cases arguing that the provinces were discriminating by refusing to grant marriage licences to same sex couples.
(Remember, provinces have the jurisdictional right to solemnize marriages.) Beginning in 2003, court decisions across Canada began legalizing same sex marriage. In these decisions, the courts found that although marriage was historically a contract-like relationship for the purpose of raising a family, times had changed. The legal rights traditionally associated with married couples had been extended to heterosexual couples outside of marriage. For example, couples living in unmarried common law relationships were entitled to claim spousal support. Or, government benefits such as income tax deductions originally available to a married couple were now available to common law couples. The courts came to the conclusion that if a couple did not need to be married to obtain the traditional legal benefits of being married, marriage must be a relationship about more than legal rights. Our society believes that a married couple have a connection with an intangible emotional quality that most people view as special.
Although some religious and conservative groups argued that marriage was for the purpose of bearing children in a family, so only couples consisting of a man and a woman should be able to marry, the courts decided that our society now accepts families of many forms. Having a family is no longer limited to people who marry; couples do not marry solely for the purpose of having children (which is why we do not test for fertility, and why we allow people past child bearing age Family Law—Chapter 2
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to marry); and, advances in technology allow same sex couples, infertile couples, and couples beyond the natural child bearing age to have children.
The courts recognized that the modern concept of marriage was a special status or institution that carried with it the ideas of expressing love, and of two individuals sharing a life together. Because it was a status or institution, to deny marriage to same sex individuals offended section 15 of the
Charter of Rights and Freedoms. Because one purpose of s. 15 is to protect a minority group from the wrongful denial of rights by others, legislation banning the granting of marriage licenses to same sex couples was struck down.
By 2005, eight provinces and one territory had legalized same sex marriage. On July 20, 2005, the federal government passed the Civil Marriage Act legalizing same sex marriages. Section 3
of the Civil Marriage Act specifically sets out that officials of religious groups may refuse to perform same sex marriages. To require the performance of same sex marriage may deprive the officiants performing the ceremony of their rights to freedom of conscience and religion guaranteed under the Charter of Rights and Freedoms.
This text will, from now on, focus on the legislation in force in British Columbia.
LEGISLATION GOVERNING GETTING MARRIED
Federal Acts: (defines who may get married)
1. Civil Marriage Act – defines that marriage, for civil purposes, is “the lawful union of two persons to the exclusion of all others.” This includes same and opposite sex couples.
2. Marriage (Prohibited Degrees) Act – defines who, in a family, may or may not get married to each other.
s. 2(1) states:
Subject to subsection (2), persons related by consanguinity, affinity or adoption are not prohibited from marrying each other by reason only of their relationship s. 2(2) states:
No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption.
In other words, you cannot marry your brother or sister (half-siblings or adopted siblings included), mother, father, grandfather or grandmother. The rest of your family is available (making your next family reunion a good alternative to online dating.)
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Provincial Act: (defines who may obtain a marriage licence and what constitutes a valid ceremony)
1. Marriage Act – defines who may perform marriage ceremonies and the requirements that must be met in order to obtain a marriage license.
Age Requirement
• (≥19) A person must be 19 years or older.
• (≥16 but ˂19) If a person is under 19 years, the consent of parents is required. If the parents refuse, the parties may apply to the court for an order to dispense with parental consent.
• (˂ 16) If a person is under 16 years, permission must be granted by the court even if parental consent exists.
Mental Capacity
• Both parties must be in normal physical and mental condition in order to understand the nature of the marriage ceremony, the duties and responsibilities created by the marriage, and the words of the ceremony. A marriage is void if the person is not mentally capable of understanding the responsibility and commitment induced by a marriage.
• If a person is intoxicated by alcohol or a drug, the marriage is not always valid if the person is unable to understand the words of the ceremony.
Consent
• Both parties must give their free and voluntary consent to the marriage.
Monogamy
• At the time of the marriage, neither party may be married to another person (The parties entering the marriage must be described as never previously married, widowed or divorced.)
Generally, lawyers and legal administrative assistants are not involved in the obtaining of marriage licences. Most couples planning to get married obtain licenses on their own.
Common-law Relationships
“Common law marriage” is a layperson’s term for individuals who cohabit without going through a legal form of marriage as set out under the Marriage Act. They are not really marriages but common law relationships where a couple is living in a “marriage-like” relationship. There are a lot of misconceptions as to how long a couple must cohabit before they are considered to be in a common-law relationship.
The reason for misconception is the nature of the legal rights granted to common law relationships. Historically, no legal rights were given for people cohabiting outside of marriage.
However, as the number of common law relationships increased, our government recognized the Family Law—Chapter 2
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need to give unmarried couples in marriage-like relationships rights to reflect their needs and expectations. These rights were originally granted only to opposite sex couples.
If two people lived together for ten years and the relationship broke down, one of the partners could be just as financially disadvantaged as a married spouse would be when a marriage ended.
Both parties needed the same legal protection.
For that reason people in common law relationships were given rights through the passage of legislation. The governments, in passing legislation, set the time period the couple must cohabit in order to be entitled to the rights under the legislation. Therefore, legislation from different levels of government defines common law differently. For example, Revenue Canada, a federal agency, considers someone, for tax purposes, to be in a common law relationship if they have lived together for 12 months. Under the Family Law Act, a provincial statute, a couple must live together for two consecutive years or have a child together in order to be considered common law.
Besides legislation, private contractual rights can also define different cohabitation time requirements. For example, a business may contract with an insurance provider for medical benefits for their employees. As part of the contract, the insurance provider may agree to provide benefits for an employee’s common law partner if they have been living together for six months.
Since the Family Law Act is the provincial act that defines spousal support for common-law spouses when the relationship breaks down, most lawyers consider the two-year time requirement in the Family Law Act as the definition of when someone is in a “common law marriage”.
LEGAL RIGHTS AND OBLIGATIONS WHEN RELATIONSHIP ENDS
Couples, who are married, are entitled to spousal support and division of family property. They are entitled to spousal support under both the federal Divorce Act and the provincial Family Law Act. They are entitled to division of family property under the Family Law Act (or in cases of real property situated on a First Nation reserve, under the Family Homes on Reserves and Matrimonial Interests or Rights Act).
Common law spouses who have cohabited for at least two years have the same rights when it comes to spousal support and to property division under the Family Law Act (or in cases of real property situated on a First Nation reserve, under the Family Homes on Reserves and Matrimonial Interests or Rights Act).
It may seem odd that for married couples, two different acts grant the right for spousal support.
The reason is that there is a division of jurisdictional powers under the Constitution. The federal government, under the Divorce Act, grants spousal support under their right to enact laws regarding marriage and divorce. The provincial government, under the Family Law Act grants spousal support under their right to enact laws regarding a person’s civil rights. The provincial government has the sole ability to divide family property under their right to enact laws regarding property (with the exception of real property located on a First Nation reserve.) Family Law—Chapter 2
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A marriage contract may be entered into by parties either before or during their marriage. These agreements set out the parties’ respective rights and obligations both during the marriage and at the time of any separation. Federal and provincial laws may limit what can be dealt with such agreements.
The contract often covers three areas of marital obligation that must be resolved when the relationship breakdown. These three areas could be dealt with in separate agreement or combined into one agreement.
Reciprocal Support: Each spouse agrees to support the other for a specified time or until a specified event occurs (e.g. while each obtains an education).
Separately Acquired Assets: The spouses agree that a specified item is to be the property of only one of the spouses.
Jointly Acquired Assets: The spouses agree that a specified item or specified items are to be the joint property of both spouses.
Parties cohabiting in a common law relationship may enter into an agreement covering the same rights and obligations. These agreements are referred to as cohabitation agreements.
When there are children involved in the relationship, couples can attempt to define issues regarding the children in an agreement. However, the courts always apply the principle that “the best interests of the children come first” at the time the relationship ends, so those provisions may not be upheld.
Issues regarding children will be discussed later in this text, so for now, the contracts presented will omit provisions regarding children (see s. 148, FLA) FORMAT OF CONTRACTS/AGREEMENTS
Under contract law, the words, not the formatting make the contract. Therefore there is no one format of contracts that must be used. However, most firms do use a form of the traditional contract style presented in this text. You will encounter variations at work.
A traditional contract style consist of four sections.
1. The Heading (also known as the exordium)
• provides title for Agreement
• sets out date on which Agreement was made
• identifies the parties to Agreement
2. The Preamble
• sets out facts on which Agreement is based
• unnumbered paragraphs (or numbered with capital letters) which provide background and facts of Agreement
• includes recital clauses which describe the background of the Agreement, stipulation clauses, and a consideration clause
• must be as complete as possible so that in the future it is easy to understand which facts were important to parties when Agreement was made
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3. The Body (Covenant Clauses)
• sets out the promises being made about the rights and obligations of the parties
• numbered paragraphs that follow preamble
4. The Ending (Testimonium and Attestation Clauses)
• Testimonium clause–concludes document, and is followed by signature(s)
• begins with “IN WITNESS WHEREOF” or “IN TESTIMONY WHEREOF”
• Attestation Clause–witness attests to signature(s) of party or parties signing Agreement
• Seal—sometimes a seal is used, sometimes not
An example of a marriage contract is given on the following page, followed by a detailed explanation of the formatting for the contract.
Note: This example is a simplified contract for teaching purposes only. It should NOT be taken as an example of a contract to be used for real life situations. There are many precedent books such as “Family Law Agreements – Annotated Precedents” a publication of the Continuing Legal Education Society of BC.
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MARRIAGE AGREEMENT
THIS CONTRACT made the
day of November, 2022.
BETWEEN:
MARY MARTIN, Accountant, of 3094 Maple Street, in the City of Vancouver, in the Province of British Columbia
(hereinafter called ” Mary“)
OF THE FIRST PART
AND:
GEORGE JAMES MARTIN, Janitor, of 3094 Maple Street, in
the City of Vancouver, in the Province of British Columbia (hereinafter called ” George“)
OF THE SECOND PART
WHEREAS the parties were married to each other on September 19, 2019
and hereto wish this Agreement to set out binding terms in the event a separation between the parties should it occur in the future;
AND WHEREAS the parties have each disclosed to the other in this Agreement all of their separate estate, property, and present and future prospects, debts and financial obligations, and each of the parties is conversant with the estate, property, present and future prospects and financial obligations of the other; NOW THEREFORE IN CONSIDERATION of the mutual promises
contained in this Agreement, the parties hereto HEREBY AGREE to be bound by the following terms:
1.
Mary hereby acknowledges that she has separate property consisting of: Family Law—Chapter 2
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-2-
(a)
Wages – THREE THOUSAND TWO HUNDRED ($3200) DOLLARS
payable monthly;
(b)
Inheritance – nil; and
(c)
Property obtained prior to the marriage:
(i)
ONE HUNDRED EIGHTY THOUSAND ($180,000) DOLLARS in
savings;
(ii)
white chesterfield and two matching chairs;
(iii)
“Birds of America” stamp collection;
(iv) yellow kitchen table and two matching chairs; and
(v)
10′ x 12′ white wool rug.
2.
George hereby acknowledges that he has separate property consisting of: (a)
Wages – FIVE THOUSAND EIGHT HUNDRED ($5800) DOLLARS
payable monthly;
(b)
Inheritance – nil; and
(c)
Property obtained prior to the marriage:
(i)
THIRTY THOUSAND ($30,000) DOLLARS in savings; and
(ii)
2001 Jaguar automobile.
3.
The parties hereto agree that the property described in paragraphs 1 and 2
herein shall be considered the property of both Mary and George equally.
4.
All income earned by both parties and all property accumulated during the course of the marriage with the earnings of either person, whether real or personal, shall be considered the property of both parties in equal shares. Should the parties separate, all said property is to be divided equally between them, PROVIDED HOWEVER that any property forming the subject matter of a separate written Agreement, which is signed by both parties, is to be divided in accordance with the terms of that separate written Agreement.
Family Law—Chapter 2
2.9
-3-
5.
If and when there is a purchase of property as a family home, the title thereto shall be registered in the name of both parties, as joint tenants, and each party shall enjoy an absolute right to the use and enjoyment of the whole of such property.
6.
All debts which are the obligations of either party at the date of this Agreement or which are contracted by either party during the course of their marriage shall be the joint debts of both parties for which they are both jointly liable, PROVIDED
HOWEVER that neither party will contract a debt in excess of THREE HUNDRED ($300) DOLLARS without the express consent of the other.
7.
If the parties hereto separate, George shall pay a lump sum representing THIRTY (30%) PERCENT of his separately or jointly held property for Mary, for her maintenance and support, in lieu of any and all monthly support payments.
8.
In the event that separation should occur after the marriage has lasted a minimum of five years, and in the event that one of the parties is incapable of reasonably supporting themself because of mental or physical infirmity, illness, or the demands of caring for any children, the parties hereto agree that the non-incapacitated person will pay FORTY (40%) PERCENT of their net yearly income as support to the other person until the disability no longer exists, PROVIDED HOWEVER, that should Mary already have received the lump sum payment referred to in paragraph 7, the lump sum payment will be deducted from the yearly support payment.
9.
The parties hereto agree that should either of the parties seek professional counselling from an accredited person with respect to any aspect of their marriage, the other party, if requested to attend by the counsellor, will attend at least ten (10) sessions.
10.
The parties hereto undertake to execute all documents, including Wills, and generally do all things necessary to ensure that this Agreement is carried out.
Family Law—Chapter 2
2.10
-4-
11.
The parties hereto have entered into this Agreement free from compulsion or coercion, have read and considered the terms of this Agreement, and have knowingly placed their signature
Family Law—Chapter 2
2.11
-5-
on this agreement with the full knowledge of the terms of this Agreement and their import. In placing their signatures to this Agreement, the parties confirm their intention to be bound by its terms insofar as is legally possible.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals on the day and year first above written.
SIGNED, SEALED and DELIVERED )
in the presence of:
)
)
)
Signature of witness
)
MARY MARTIN
)
Name of witness
)
)
Address
)
.
)
Address
)
)
Occupation
)
SIGNED, SEALED and DELIVERED )
in the presence of:
)
) )
)
Signature of witness
)
GEORGE JAMES MARTIN
)
Name of witness
)
)
Address
)
.
)
Address
)
)
Occupation
)
Family Law—Chapter 2
2.12
THE FORMAT OF THE AGREEMENT
General Formatting Rules
Margins. There are different professionally accepted standards for margins. The current practice seems to be to accept the default margins set by the word processing software; however, some firms may require their margins to be set to a different setting. (For example, if the contract is bound on one side, the margin may be increased by 0.5” on that side.) For the exercises in this text, a 1” margin is used for all sides.
Spacing. Single space the description of the parties in the heading; use 1.5 spacing for the preamble and the body of the agreement, and triple spacing between paragraphs in the body. To triple space, set the space after each paragraph to 22 points in the Line Spacing Options in Microsoft Word. Do not press Enter twice to end a paragraph – this may result in inconsistent spacing.
Page Numbering. The numbering on the second and following pages should be centered at the top of each page in the header; common practice is for the header to be at either 0.5” from the top or 1” from the top of the page. A triple space should be left after the page number so that there are two blank lines before the first line of the body begins. In all the documents you prepare in this course, the page numbers will be inserted in a header that is 1” from the top of the page.
Do not type in the page numbers, you must use auto page numbering.
Dates. When the date is written in the month-day-year format, the day is written without the ordinal suffixes (“st”, “nd”, “rd”, “th”). The correct format would be: April 30, 2020.
When the date is written in the day-month-year format, ordinal suffixes are used. The correct format would be: the 30th day of April 2020 or the 30th of April 2020. Do not use superscript in dates, so the 30th of April 2020 is incorrect.
Money Amounts are repeated in words in instruments
With numbers that have decimal points, use a comma only when the number has five or more digits to the left of the decimal point. Place the comma in front of the third digit to the left of the decimal point in such a case. If there are only four numbers, omit the comma. If the number contains seven or more digits, continue placing commas after every three places. When writing out such numbers, place the comma where it would appear in the figure format. Use the word
“and” where the decimal point appears in the figure format.
Examples:
$15,768.13: Fifteen thousand, seven hundred sixty-eight dollars and thirteen cents $1054.21: One thousand fifty-four dollars and twenty-one cents
The Use of the Hyphen in Compound Numbers
All compound numbers written in words must be joined with a hyphen.
31—thirty-one
57—fifty-seven
99—ninety-nine
Family Law—Chapter 2
2.13
Proper Placement of the Figures in Money Amounts in Legal Instruments
• ONE THOUSAND FIFTY-FOUR DOLLARS AND TWENTY-ONE ($1054.21) CENTS
• If the number in brackets appears next to where a comma would be used, you skip the comma e.g. ONE HUNDRED THOUSAND ($100,000) DOLLARS
Heading of the Agreement
First line includes: name of
document in upper case letters and
MARRIAGE AGREEMENT date. The date is not keyed; leave room to write it in or a blank
[THE TITLE IS FOLLOWED BY A TRIPLE SPACE]
underline. Followed by a triple
space.
THIS CONTRACT made the day of November 2020.
BETWEEN:
Left justified at left margin. Capitalized. Followed by a double space.
MARY MARTIN, Accountant, of 3094 Maple Street, in the City of Vancouver, in the Province of British Columbia
1.5” indent
from margin
0.5” indent
(hereinafter called ” Mary“)
from margin
Right justified at right margin. Capitalized. Double space after.
OF THE FIRST PART
AND:
GEORGE JAMES MARTIN, Janitor, of 3094 Maple Street, in the City of Vancouver, in the Province of British Columbia
Name in
Optional line to define party (double
(hereinafter called “
upper case
George“) spaced below description)
letters,
OF THE SECOND PART
occupation,
address,
a. Single space heading followed by a double space
the postal
code is
b. First line includes: name of document in upper case letters and date optional
i. indented 1” or at left margin
ii. date not keyed; room to write it in
iii. followed by a triple space (Press Enter three times).
c. Description of parties:
i. Indented 1.5” from left margin; and, 0.5” from the right margin ii. name in upper case letters with occupation and address. The postal code is optional
iii. optional line to define party with double space below iv. may also include OF THE FIRST PART or OF THE SECOND PART with a double space below description
v. double space is left after identification of each party
Family Law—Chapter 2
2.14
Preamble—Recital/Stipulation/Consideration Clauses
The purpose of the Recital/Stipulation is to describe the circumstances that exist at the time the contract was entered into. In the event that the courts must interpret the clauses in a contract at a later date, they provide some frame of reference for the judge who has to define the intent of the clauses.
Consideration refers to the “payment” that each party to a contract must give in order for there to be a binding contract. The “payment” does not have to be money. It can be a promise to do something or giving up a right that a person has. Both parties must give some sort of payment to the other, because if only one party gives payment, it is a promise to give a gift, not a contract.
Promises to give gifts are not enforceable.
The Consideration Clause is a formal statement to show that the parties to the contract have each given something up as payment to make the contract enforceable.
a. begins a triple space after the heading/exordium
b. paragraphs are 1.5 spacing
c. unnumbered paragraphs in the Preamble are indented 1”.
d. Recital and Stipulation Clauses: provide background agreed facts and sets out the intention of the parties
e. Consideration Clause: begins with NOW THEREFORE THIS AGREEMENT
WITNESSETH.
There are three correct formats for the preamble – the lawyer’s instruction determines the style to use.
Preamble—Version 1
1” indent
1.5 spacing between the lines
WHEREAS the parties have entered into a marriage and hereto wish this Agreement to set out binding terms in the event a separation between the parties should occur in the future;
Triple space between paragraphs by setting the spacing after paragraphs to 22 points (when using 11 point font)
AND WHEREAS the parties have each disclosed to the other in this Agreement all of their separate estate, property, and present and future prospects, debts and financial obligations, and each of the parties is conversant with the estate, property, present and future prospects and financial obligations of the other;
NOW THEREFORE IN CONSIDERATION of the mutual promises contained in this Agreement, the parties hereto HEREBY AGREE to be bound by the following terms:
Family Law—Chapter 2
2.15
Preamble—Version 2
1” indent
WHEREAS:
Same spacing between lines and
paragraphs as in Version 1
A.
The parties have entered into a marriage and hereto wish this Agreement to set out binding terms in the event a separation between the parties should occur in the future; B.
The parties have each disclosed to the other in this Agreement all of their separate estate, property, and present and future prospects, debts and financial obligations, and each of the parties is conversant with the estate, property, present and future prospects and financial obligations of the other;
NOW THEREFORE IN CONSIDERATION of the mutual promises contained in this Agreement, the parties hereto HEREBY AGREE to be bound by the following terms:
Preamble—Version 3
1” indent
BACKGROUND:
Same spacing between lines and
paragraphs as in Version 1
A.
The parties have entered into a marriage and hereto wish this Agreement to set out binding terms in the event a separation between the parties should occur in the future; B.
The parties have each disclosed to the other in this Agreement all of their separate estate, property, and present and future prospects, debts and financial obligations, and each of the parties is conversant with the estate, property, present and future prospects and financial obligations of the other;
TERMS OF AGREEMENT
In consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto agree, each with the other as follows: Family Law—Chapter 2
2.16
Body of the Agreement
• Double or 1.5 space each paragraph, with a triple space between paragraphs.
• Do not hyphenate proper nouns, consecutive lines (if one line ends with a hyphen, the next line should not), or the last word on a page. Do not divide titles and the surname. To force items to stay together in Word hold down control + shift when you type the joining space or hyphen.
• The bottom right-hand side of each page, except the signature page, would be initialled by the parties and witnesses at the time they execute the contract. The contract is still valid without the initials; however, they are inserted as a precaution to prevent a party from claiming that a page was inserted after the contract was made.
• Each paragraph is numbered. Paragraph numbers are at the left-hand margin. Subparagraph formats vary among law firms. For all assignments requiring sub-paragraphs, use small letters in brackets, indented 0.5” from the left-hand margin, as shown below.
Always use autonumbering – never type in a paragraph number at any level.
Spacing between paragraphs
Numbering and spacing between paragraphs is best handled by using the Word multilevel list tool. This allows for changes and revisions to be easily integrated. In our examples the tool has been assigned these settings.
Settings
o Level 1 Settings
Arabic numbers—1. 2. 3. Number Alignment: Left
Aligned at: 0
Text indent at: 0
Follow number with Tab Character
Add tab stop at 1”
o Level 2 Settings
Lower case letters—(a) (b) (c) Number Alignment: Left
Aligned at 0.5” from the left margin
Text indent at—1”
Follow number with Tab Character
Add tab stop at 1”
o Level 3 Settings
Lower case Roman numerals—(i) (ii) (iii) Number Alignment: Left
Aligned at 1” from the left margin
Text indent at: 1.5”
Follow number with Tab Character
Add tab stop at 1.5”
Family Law—Chapter 2
2.17
1.
This is a Level 1 paragraph. The number is at the left margin. There is a 1” tab to the text. The paragraph has 1.5 spacing set with 22 pts after. Second and continuing lines wrap to the margin.
(a)
This is a Level 2 paragraph. The number begins 0.5” from the margin.
The tab stop after the number is set at 1”. Second and continuing lines are indented at 1” from the margin. The paragraph has 1.5 spacing set formatted with 0 pts. before and after.
i.
This is a Level 3 paragraph. The number begins 1” from the margin. The tab stop after the number is set at 1.5”. The paragraph has 1.5 spacing formatted with 0 pts. before and after.
ii.
You can see there are no extra lines between Level 1 and
Level 2 paragraphs, nor are there extra lines between Level 2
and Level 3 paragraphs.
2.
This is a Level 1 paragraph.
For example, Paragraph 1 from the example marriage contract is shown below.
1” tab
1.
Mary hereby acknowledges that she has separate property consisting of: (a)
Wages – THREE THOUSAND TWO HUNDRED ($3200) DOLLARS payable monthly;
The words on the subparagraphs
(b)
Inheritance – nil; and
should line up with the words from
(c)
Property obtained prior to the marriage:
the main paragraph
(i)
ONE HUNDRED EIGHTY THOUSAND ($180,000) DOLLARS in savings; (ii)
white chesterfield and two matching chairs;
0.5” tab
(iii)
“Birds of America” stamp collection;
1” indent (iv) yellow kitchen table and two matching chairs; and (v)
10′ x 12′ white wool rug.
Family Law—Chapter 2
2.18
• At least two lines of the last numbered paragraph of the body must be on last page. The Testimonium doesn’t count in that.
• If the second to last (penultimate) page ends higher than 8 lines from the bottom, draw a Z line using your computer drawing tool. Hold the shift key down as you do the horizontal lines.
o In the last line where you want to insert the Z, stop at a convenient place in the sentence and begin the top of the Z line in the text line immediately after and make your Z line. The remainder of the sentence should complete on the next page. See example in Appendix 1 at page 7.
Testimonium Clause
a. concludes agreement; introduces attestation clause
b. same formatting as all other paragraphs in the body
c. begins with phrase in upper case letters
d. seals on contracts and agreements are optional, so check if they are to be added and use appropriate wording in the testimonium clause.
IN WITNESS WHEREOF the parties hereto have hereunto
set their hands [and seals] on the day and year first above written.
Attestation Clause
a. each party must sign before a witness
b. signature clause created in a single spaced, three-column, multi-row table with borders removed
• If there is only one witness to the signatures of two parties, key below the witness’s occupation “As to both signatures” (See the following examples of attestation clauses.)
SAMPLE ATTESTATION CLAUSES
A party to an agreement signs in front of a witness. Depending on the preference of the lawyer involved, the parties may sign with or without seals. Seals are an old traditional method to signify that a person is willing to be bound absolutely by the terms of the contract. Technically, people who sign under seal, are bound by the contract even if they do not receive any consideration (something in exchange). Normally, if a person does not receive consideration, they are not required to live up to their promises because what they are doing is a gift and gifts are not enforceable.
In modern times, a lawyer would ensure there is consideration given from each party to the other in a contract so using seals becomes more of a formality than a requirement. Parties may also sign in front of the same witness or different ones. Therefore, there are four attestation layouts possible.
Family Law—Chapter 2
2.19
• Different witnesses, without seal
• Different witnesses, with seal
• Same witness, without seal
• Same witness, with seal
The most common layout for attestation clauses is to have it set up assuming each party signing will be signing in front of a different witness. Even if the two parties end up signing in front of the same witness, the style is still effective. The witness just needs to sign twice. However, it could still be used if the parties end up signing at different times of in front of different witnesses. It provides the greatest flexibility. Where you know the name, address and occupation of the witness key it in.
Example 1 – No Seals – two witnesses
SIGNED IN THE PRESENCE OF: )
)
)
)
Signature of witness
)
)
Name of witness
)
)
MARY MARTIN
Address
)
.
)
Address
)
)
Occupation
)
SIGNED IN THE PRESENCE OF: )
)
)
)
Signature of witness
)
)
Name of witness
)
)
GEORGE JAMES MARTIN
Address
)
.
)
Address
)
)
Occupation
)
Family Law—Chapter 2
2.20
Example 2 – Seals – two witnesses
Seals would be affixed at the end of each signature line.
SIGNED, SEALED and DELIVERED )
in the presence of:
)
)
)
Signature of witness
)
MARY MARTIN
)
Name of witness
)
)
Seal is affixed at the end of the signature
Address
)
.
)
line. The words “SEALED and DELIVERED”
Address
)
are used.
)
Occupation
)
SIGNED, SEALED and DELIVERED )
in the presence of:
)
) )
)
Signature of witness
)
GEORGE JAMES MARTIN
)
Name of witness
)
)
Address
)
.
)
Address
)
)
Occupation
)
Family Law—Chapter 2
2.21
Example 3 – No seals – one witness
SIGNED IN THE PRESENCE OF: )
)
)
)
MARY MARTIN
Signature of witness
)
)
Name of witness
)
)
GEORGE JAMES MARTIN
Address
)
.
)
“As to both signatures” is keyed here to show
Address
)
that one witness saw both parties sign.
)
Occupation
)
[In other types of agreements, more than
As to both signatures
)
two parties may sign in front of the same
witness. “As to all signatures” is used when
there are three or more signatures in front of
one witness. In family law, since only two
people can marry, this situation should not
arise.]
In practice, seals would be
Example 4 – Seals – one witness
placed on top of these circles
SIGNED, SEALED and DELIVERED )
(usually red wafer stickers)
in the presence of:
)
)
)
)
MARY MARTIN
Signature of witness
)
)
Name of witness
)
)
GEORGE JAMES MARTIN
Address
)
.
)
Address
)
)
Occupation
)
“As to both signatures” is keyed here to show
As to both signatures
)
that one witness saw both parties sign.
Family Law—Chapter 2
2.22
Backing Sheet of the Agreement
The Supreme Court Rules make no mention of a backing sheet. It is the court registry which has traditionally required a backing sheet which provides information about the address for delivery. At this time the court registry only requires backing sheets for Orders. However, lawyers can elect to attach a backing sheet to any legal document they choose. In this course, you will assume a backing sheet must be included with a court document unless the instructions state otherwise or the court downloaded form does not contain one.
There are two formats for backing sheets: one is for legal instruments like agreements and wills; the other is for court documents. See Appendix One for examples of each type of backing sheet, and for instructions on how to create the backing sheet.
The backing sheet is stapled behind the document, facing in the opposite direction, with the date at the left side.
INDEPENDENT LEGAL ADVICE
A couple often approaches a lawyer to draft an agreement, but they have opposing interests. The lawyer cannot act for both of them as that would be a conflict of interest. Therefore, the lawyer technically represents only one of the two parties.
Although marriage contracts are like other legally binding agreements, some aspects make them unique. Most contracts are written between parties who are cautious and motivated to negotiate in their own self interests. Marriage contracts, however, are written between emotionally involved individuals whose reasoning is clouded by emotion. In other words, they enter into the contract viewing their relationship through rose coloured glasses.
Also, in some circumstances, a party may be under some form of economic or emotional duress when they enter into the agreement. The Family Law Act allows the court, after receiving an application from a spouse, to review, and possibly set aside or alter agreements which are unfair.
Because a lawyer can only act for one party, the unrepresented party could claim that the contract was unfairly drafted and that the agreement should be set aside or altered. For that reason, most lawyers who draft marriage contracts, will advise the unrepresented person to obtain independent legal advice from another lawyer. Each party to the agreement could then execute or sign the agreement with their own lawyer as witness to the signature. The party who obtained independent legal advice would also sign a Certificate of Independent Legal Advice as proof that they were aware of their rights before entering the agreement.
Family Law—Chapter 2
2.23
Chapter 2 Review
Use these questions to check your understanding of Chapter 2. The answers can be found in the data file named Ch2ReviewKey.docx Ask your instructor where to find this file.
1. In English common law marriage was historically regarded as a legal __________________ between _____________________________.
2. Name two federal statutes governing marriage in Canada. What jurisdiction does the Government of Canada have over marriage?
3. Name the provincial statute governing marriage in British Columbia. What jurisdiction does the Government of British Columbia have over marriage?
4. What basic concept of marriage did religious and conservative groups who accepted same sex marriage have to give up?
5. Name the document that:
a. must be obtained prior to a legal marriage in British Columbia b. sets out the rights and obligations of parties during marriage c. contains the spouses’ promise to support each other while each obtains an education
d. contains an agreement that a specific automobile will be the sole property of one spouse
6. Name three personal requirements of a valid marriage under the provincial Marriage Act.
7. How old must you be to marry in British Columbia without anyone’s consent?
8. Between what ages must a person obtain their parents’ consent prior to marrying?
9. Up to what age must a person have the court’s approval if he/she wants to marry in British Columbia?
10. Name three things that might be agreed upon in a Marriage Contract.
11. Are seals required when a Marriage Contract is executed?
12. Why do present-day lawyers ensure that each party receives consideration in a Marriage Contract?
13. Write or key the underlined dates in the correct format: a. This Agreement made June 3rd, 2018.
b. The payments shall commence the 3 day of June, 2018.
14. Whose initials are written on the bottom of the pages of a Marriage Contract? Are they added to every page?
15. To which page(s) of a contract should a “Z” be added?
Family Law—Chapter 2
2.24
16. What line is added to the bottom of the witness section in an Agreement when there is one witness and two parties signing
17. Name the clause:
a. on an Agreement that starts “IN WITNESS WHEREOF….”
b. on an Agreement that starts “SIGNED, SEALED AND DELIVERED….”
Chapter 2 Terminology
Use a legal dictionary or the Family Law Act (*FLA) to find the definitions of the following words.
affinity
bigamy
cohabit
common law marriage (*FLA)
conjugal
consanguinity
engagement
testimonium
marriage
monogamy
reciprocal
solemnize
PE2 PRACTICE EXERCISE—SWEENEY MARRIAGE CONTRACT
See the Sweeney Client Information Sheet which follows on the next two pages.
Open a Word document and save it as: PE2ContractYourLastName
When you have completed this practice exercise, check your work with the file PE2Key.pdf Ask your instructor for the file.
For all of your practice and submission exercises, assume you work for Gail Amherst of Amherst Brown & Company unless otherwise stated in the instructions. For more details about the firm, see Appendix One.
The date is July 26, 2026. For this exercise, Mr. Sweeney has asked Ms. Amherst to prepare a Marriage Contract, so Mr. Sweeney’s name and address will be put at the top of the contract before Ms. Sweeney’s. The client’s name always comes first in the heading of legal instruments.
Key the Marriage Contract using Arial, 11 pt. font. Use 1.5 spacing. Use the precedent which begins on page 2.8 to complete this exercise. You will not be keying the entire Agreement, only the parts described below:
• Start with the heading and two unnumbered paragraphs (preamble)
• Paragraph 1 – describe Sean’s assets first, since he is your client
• Paragraph 2 – describe Caitlin’s assets
• Paragraph 3 – assets obtained prior to marriage are to be the property of Sean and Caitlin equally (See paragraph 3 of the precedent.)
• Paragraph 4 – All property, including incomes of both is equally shared. See paragraph 4 in the precedent.
• Last numbered paragraph – key the words “Paragraphs 5 to 11 of the precedent would follow.”
• Key the testimonium and attestation clauses – Ms. Amherst will witness Mr. Sweeney’s signature and you will witness Ms. Sweeney’s signature. Seals will be used. (Insert Family Law—Chapter 2
2.25
circles to represent seals.)
Add page numbers in a header that is 1” from the top edge of the paper: a. Click on the Insert tab.
b. At the Header & Footer group, click on the Header button.
c. From the drop-down menu choose Edit Header.
d. In the Options group, place a check mark in Different First Page.
e. On the Design tab, at the position group change Header from Top to 1”.
f. At the Header & Footer group, click on the down facing error on the Page Number button.
g. At the drop down menu, choose Top of Page then Plain Number 2 (centered).
h. Press Enter once to leave a blank line between the page number and the first line of the body of the Agreement.
(These instructions for page numbering also appear in Appendix One.) In the same document add a backing sheet in landscape orientation- to do this in Word go to
“Layout” “Breaks” “Next Page” (under section break). Note, if you simply use a page break the agreement will also go into landscape when you change the orientation you must use a “Next Page” section break. Vertically center the backing sheet. Set both the header and footer for 1”
on the backing sheet. Be sure there is no page number on the backing sheet. See Appendix One for instructions.
FOOTER
Be sure to add a footer on all pages of this document. The name of the assignment and your name should appear at the left margin. Change the font in the footer to Arial, 10 pt. See the illustration below. Do not include the border.
PE2YourName
Family Law—Chapter 2
2.26
CLIENT INFORMATION SHEET
FILE NO.: GBA-532-26
RE.: Marriage Contract
DATE: July 26, 2026
CLIENT IDENTIFICATION
FULL NAME OF CLIENT
SEAN DAVID SWEENEY (he/his/him)
TELEPHONE
(Home) 604-535-2345
(Cell) 604-535-5678
ADDRESS
2053 151A ST
E-MAIL: david_sweeney@telus.net
SURREY BC V4A 9C3
At this residence since August 2, 2026
BIRTH DATE
February 16, 1998
BIRTHPLACE:
Thunder Bay, ON
BC RESIDENT SINCE
July 15, 2016
SIN
839-678-992
OCCUPATION
Chartered Accountant
INCOME:
$65,000
EMPLOYER:
City of Surrey
TELEPHONE:
604-591-4011
14245 – 56th Avenue
SURREY BC V3X 3A2
PARTICULARS OF MARRIAGE/RELATIONSHIP
DATE OF MARRIAGE
July 2, 2026
PLACE:
Thunder Bay, ON
PARTICULARS OF THE PAST
CLIENT
SPOUSE
STATUS BEFORE MARRAGE
SINGLE
SINGLE
NAME BEFORE MARRIAGE
SEAN DAVID SWEENEY
CAITLIN CHLOE DOYLE
SURNAME AT BIRTH
SWEENEY
DOYLE
SPOUSE IDENTIFICATION
NAME OF SPOUSE
CAITLIN CHLOE SWEENEY (she/her/hers)
TELEPHONE
(Home) 604-535-2345 (Work)
ADDRESS
2053 151A ST
E-MAIL: caitlin _sweeney@telus.net
SURREY BC V4A 9C3
At this residence since August 2, 2026
BIRTH DATE
June 25, 1994
BIRTHPLACE:
Everett, ON
BC RESIDENT SINCE
July 15, 2026
SIN
817-937-391
OCCUPATION
Chartered Accountant
INCOME
$58,000
EMPLOYER:
Heming, Wyborn & Grewal
TELEPHONE
604-576-9121
#200 – 17618 – 65 Avenue
Surrey, BC V35 1L3
Mr. Sweeney – Obtained prior to the marriage: 2025 Porsche, $52,300 in savings, $25,000 worth of furniture, and $15,000 worth of stereo equipment.
Family Law—Chapter 2
2.27
Ms. Sweeney – Obtained prior to the marriage: 2024 BMW, $30,200 in savings, and approximately $16,000 worth of furniture.
Neither party has an inheritance.
The assets acquired both before and after marriage are to be the property of the spouses equally.
Family Law—Chapter 2
2.28
GA2 GRADED ASSIGNMENT—DAVIDSON MARRIAGE AGREEMENT
See the Davidson Client Information Sheet on the next page.
Open a Word document and save it as: GA2AgreeYourLastName.
Ms. Davidson has asked Ms. Amherst to prepare a Marriage Contract. Ms. Davidson has recently received a large inheritance and the couple feel that it is a good time to set out their rights and obligations to each other.
A practicum student has keyed the marriage agreement as Ms. Amherst dictated it, but there are many errors in the draft. Your job is to make it conform to the rules in this chapter including:
• Change formatting, as necessary.
o Begin by formatting the spacing within and between paragraphs o Margins: top, bottom and side are 1”
o Font: Arial, 11 pt
o Preamble: 1” first line indent from the margin
o Body: 1.5 line spacing with a triple space between paragraphs and indents as shown on page 2.18
o Remove all instances of superscript on “th” or “st”
o In the numbered paragraphs all dollar amounts are expressed in figures and in words. See page 2.14
• Add page numbers in the appropriate format in a header that is 1” from the top edge of the paper.
• Correct all spelling errors. Do not change the wording.
• Seals will not be used. Be sure the wording of the first line of the attestation clause matches the wording in the testimonium clause.
• Add an attestation clause in a three column table. Ms. Amherst will witness both signatures at the same time.
• In the same document, add a backing sheet in landscape orientation. Vertically center the backing sheet. Set both the header and the footer for 1” on the backing sheet.
• Assume that the information in the Client Information Sheet is correct.
See Appendix One for instructions on how to create a backing sheet and for the sample of a backing sheet for a legal instrument.
• Add a footer on ALL PAGES, including the first page and the backing sheet. Change the font in the footer to Arial, 10 pt. See the illustration below.
GA2YourName
Submission Instructions
Your instructor will give you submission instructions.
Family Law—Chapter 2
2.29
CLIENT INFORMATION SHEET
FILE NO.: GBA-432-26
RE.: Marriage Contract
DATE: January 2026
CLIENT IDENTIFICATION
FULL NAME OF CLIENT
KAYLA JEAN DAVIDSON (she/her/hers)
TELEPHONE
(Home) 604-294-9012
(Cell) 604-535-5667
ADDRESS
680 MacDonald Ave N
E-MAIL: kjdavidson@rogers.ca
Burnaby, BC V5C 1V3
At this residence since March 1, 2023
BIRTH DATE
May 5, 1997
BIRTHPLACE
Saskatoon, SK
BC RESIDENT SINCE
October 15, 2021
SIN
866-902-345
OCCUPATION
Paediatrician
GUIDELINE INCOME $140,000
EMPLOYER
BC Children’s Hospital
TELEPHONE
604-875-2345
4480 Oak Street
Vancouver, BC V6H 3V4
PARTICULARS OF MARRIAGE/RELATIONSHIP
DATE OF MARRIAGE
June 3, 2021
PLACE
Saskatoon, SK
PARTICULARS OF THE PAST
CLIENT
SPOUSE
STATUS BEFORE MARRAGE
SINGLE
SINGLE
NAME BEFORE MARRIAGE
CHRISTOPHER MICHAEL DAVIDSON
KAYLA JEAN SMITH
SURNAME AT BIRTH
DAVIDSON
SMITH
SPOUSE IDENTIFICATION
FULL NAME OF SPOUSE
CHRISTOPHER MICHAEL DAVIDSON (he/his/him)
TELEPHONE
(Home) 604-294-9012
(Work) 604-294-9013
ADDRESS
680 MacDonald Ave N
E-MAIL: cmdavidson@rogers.ca
Burnaby, BC V5C 1V3
At this residence since March 1, 2023
BIRTH DATE
May 13, 1992
BIRTHPLACE
Kincaid, SK
BC RESIDENT SINCE
October 15, 2021
SIN
851-527-836
OCCUPATION
Contractor
GUIDELINE INCOME $115,000
EMPLOYER
Davidson Contracting
TELEPHONE
604-294-9013
680 MacDonald Ave N
Burnaby, BC V5C 1V3
CHILDREN
NAME
SEX
BIRTH DATE
PLACE OF BIRTH
Jayden Christopher Davidson
Male
April 18, 2023
Burnaby, BC
Colton Michael Davidson
Male
April 25, 2025
Burnaby, BC
Family Law—Chapter 2
2.30
This contract made , 2026
Between
Kayla Jean Davidson of 680 MacDonald Avenue North, in the City of Burnaby, in the Province of British Columbia
(hereinafter called “Kayla”)
And
Christopher Michael Davidson of 680 MacDonald Avenue North, in the City of Burnaby, in the Province of British Columbia
(hereinafter called “Christopher”)
Whereaz the parties have entered into a marriage on June 3rd, 2021 in Burnaby British Columbia and hereto wish this Agreement to set out binding terms in the event a separation between the parties should occur in the future.
And whereas the parties have each disclosed to the other in this Agreement all of their separate estate, property, and present and future prospects, debts and financial obligations, and each of the parties is conversant with the estate, property, and present and future prospects, debts and financial obligations of the other; Now therfore in consideration of the mutual promises contained in this Agreement, the parties hereto hereby agree to be bound by the following terms: 1. Kayal hereby acknowledges that she has separate property consisting of: a) Wages–$11,666.66 payable monthly
b) Inheritance–$450,000
c) 2025 BMW Sedan
2. Chistopher hereby acknowledges that he has separate property consisting of: a) Wages–$9583.33 payable monthly
b) 2024 Dodge Ram 3500 4WD Mega Cab SLT
c) 2026 Dodge Viper
3. The parties herein agree that the property described in paragraphs 1 and 2
herein shall be considered property of both the parties equally, except for Kayla’s inheritance of $450,000 of which $250,000 shall reamin in the sole property of Kayla.
4. All the income earned by both party and all property accumulated during the course of the marriage with the earnings of either person, whether real or personal, shall be considered the property of both parties in equal shares.
Shoud the parties separate, any property accumulated after marriage is to be divided equally unless otherwise set out in the Agreement.
5. If and when there is a purchase of property as in a family home, the title thereto shall be registered in the anme of both parties, as joint tenants, and each aprty shall enjoy an absolute right to the use and enjoyment of the whole of such property
Family Law—Chapter 2
2.31
6. All dbets which are the obligations of either party oat the date of the Agreement or which are congracted by either party during the course of their marriage shall be the joint debts of both parties for which they are both jointly liable, porvided, however that neither party will contract a debt in excess of $3000 without the express consent of the other.
7. The parties hereto agree that should either of the parties seek professional counseling from an accredited person with respect to any aspect of their marriage, the other party, if requested to attend by the cousellor, will attend at least five sessions.
8. The parties hereto undertake to execute all documents, including Wills, and genrallydo all things necessary to ensure that the Agrement is carried out.
9. The parties hereto have entered into this Agreement free from compulsion or coercion, have read and considered the terms of the Agreement, and have knowingly placed their signature on the Agreement with full knowledge of the terms of the Agreement and their import. In placing their signatures to this Agreement, theparties confirm their intention to be bound by its terms insofar as is legally possible.
Family Law—Chapter 2
2.32
ENDING A MARRIAGE OR COMMON-LAW RELATIONSHIP
INTRODUCTION
Unless they are drafting marriage or cohabitation agreements, lawyers are not often involved with couples entering marriage or common-law relationships. However, lawyers do become involved when a marriage or common-law relationship ends because of the legal issues involved. A client going through a separation or divorce is experiencing emotional issues that affect how they deal with the legal issues involved in ending the relationship.
This chapter will start by attempting to give some perspective into the client’s situation. It will then discuss the different methods for ending marriages or common-law relationships, the legal issues that need to be dealt with, and the separation agreement as a tool for settling the legal issues.
WORKING FOR THE FAMILY LAW CLIENT
Family law is one of the most emotionally charged areas of law because the clients are usually going through very difficult times in their lives. They bring their emotions and personal needs to the legal process. To work successfully in family law, legal administrative assistants must have empathy for and an understanding of what their clients are feeling.
1. Emotional Loss. A couple enters into a marriage or a marriage-like relationship expecting that it will fulfill their lifelong emotional needs, such as the need to love or be loved, the need to have a life partner, the need to be wanted, etc. When the relationship ends, a spouse can no longer expect their emotional needs to be met by their partner. Feelings about this loss of emotional fulfillment can have a strong impact on how a client deals with the legal issues.
Some clients feel anger, disappointment or betrayal because their partner failed to meet their expectations. In addition, one spouse may move on with their life outside of the relationship faster than the other. As a result, a client may be bitter and vindictive, and may try to use the legal process to punish their ex-partner. A client may give up entitlement to their rights in hopes of reconciling or winning back their partner, or because they just want the situation to end. A legal administrative assistant will often deal with clients who are depressed.
2. Personal Failure. Closely related to emotional loss, is the idea clients might have that they have somehow failed in life or that they have exercised poor judgment. Our society traditionally views the end of a relationship in a negative manner describing it with phrases such as “marriage breakdown” or “the marriage failed” and wanting to know who was responsible for the breakup or “who left whom”. Some clients want to use the legal process to assign blame or to prove they were the ones who left their partners.
3. Economic Standing. One common benefit of entering into a relationship is financial economies of scale. Two individuals pooling their money can usually purchase more than one individual on their own. If one individual earns more than the other, the lower earning individual immediately gets a boost to his economic situation.
Family Law—Chapter 3
3.1
However, even in such a case, the higher paid individual will have a better lifestyle with a partner than being on their own. For example, if one person works and the other stays home to raise children, the person who works is getting a financial benefit. They could not have raised a child as cheaply if they had to pay for childcare.
When a marriage or common-law relationship ends, one or both individuals will often face a reduction in their standard of living. A client could be stressed out about their financial situation (or lack of money), or bitter over the drop in their lifestyle (such as having to move to smaller accommodations).
4. Community Status. Ending a marriage can affect how a person is viewed in their community, i.e. their family, their cultural group, or their religious group. In some families, cultures or religions divorce can be viewed as unacceptable or shameful, and individuals in certain positions or occupations, such as politicians or clergymen, might feel especially humiliated or embarrassed.
Your clients could be dealing with any or all of the above personal issues at the same time as they are dealing with the legal ones. They may become extremely sad or angry at times. Some clients may have difficulty making decisions and may change their minds repeatedly. They may fail to return calls, or call several times in a day. Being able to understand the clients’ situations and possibly their motivations will help the legal administrative assistant to work with them empathetically and respectfully – even if their clients’ decisions sometimes seem irrational or petty.
ENDING THE RELATIONSHIP
Common-Law Marriage. To end a common-law relationship, the parties can just go their separate ways. There was no licensing or ceremony required to enter into the relationship and there is no formality required to end it, unlike a marriage which requires a legal declaration to declare it is over. Although common-law partners have certain spousal rights under various legislation, they do not have the same legal status as married spouses.
Marriage. There are two means to end a marriage: annulment and divorce. Both require a court proceeding and declaration.
ANNULMENT: An annulment is a declaration that the marriage is void ab initio meaning the marriage was void from the beginning. If a marriage is annulled, the parties can say they were never married. No spousal status existed, and no spousal rights were created. A legal annulment is not the same as a religious annulment. Because of the separation between religion and state, the courts do not have to recognize a religious annulment, and religions do not have to recognize court declarations of annulment.
The circumstances where an annulment can be obtained are quite limited.
(a) Validity of marriage requirements. If the parties violated the initial requirements for a valid marriage, the marriage should be void. For example, if the one of the parties was too young or the parties are related such as brother and sister, they should not have been Family Law—Chapter 3
3.2
married in the first place. Or, if one of the parties was already married, the second marriage is void since bigamy is not allowed in Canada.
(b) Capacity and freedom to consent. At the time of the ceremony the parties must possess the mental capacity to consent to marriage. Mental capacity may be affected by mental illness, developmental disability, age or intoxication. The parties need to understand that they are entering into a marriage as a legal status, not the social, emotional, and economic consequences of marriage.
Being intoxicated does not automatically grant the right to an annulment. For example, in C.M.D. v R.R.S, 2005 BCSC 757, a woman got married while drunk in Las Vegas. The court found that the woman, who after deciding to get married, had to travel to a wedding chapel, go elsewhere to obtain a marriage license, and return to the chapel to perform the ceremony was not too intoxicated to understand she was getting married. Being drunk hindered her judgment, but not her understanding that she was going through a marriage ceremony. She was able to recall all the events involved.
Marriages under duress or “shotgun” weddings are not valid. There is no real consent.
(c) Consummation. At the time of the ceremony, the parties must have the ability to consummate the marriage. If one of the parties lacks the ability or capacity to consummate, annulment could be granted. This reason stemmed from two historical ideas about marriage. The first is that a primary purpose of marriage is to have children. The second is that couples did not have sexual relations until their wedding night so there was no means to determine if the other party had the capacity to consummate. Those reasons are not as relevant in modern times, but the legal principles have not changed much.
The inability to consummate could be either physical or psychological. A psychological inability to consummate is not limited to mental illness but could include “psychological repugnance” where one party could be so repelled by the thought of intimacy with the other party that consummation would never occur.
An example of this would be a case of a spouse finding out that the other person had a sexually transmitted disease after marriage.
If both the parties were aware of the physical or psychological inability prior to marriage, they cannot rely on this reason for an annulment.