Aren’t Prenups unromantic and indicate a lack of trust?
Even though one in ten couples now enter into some kind of prenuptial or premarital agreement (“prenups”) many couples are reluctant to enter sign a prenup because it seems unromantic and indicates a lack of trust.
There are several reasons why this reluctance is misplaced.
First, if not you do not sign a prenup, your marriage will be governed by a complex set of laws. In California they are the California Family Code and Probate Code. Either way your marriage will be governed by a complex set of rules. The choice is between a set of rules negotiated by you or imposed by the State.
Second, from a historical perspective, premarital contracts lie at the root of the institution of marriage. For two thousand years, Jewish marriages have been preceded by a prenuptial agreement called the “Ketubah.”
Third, far from undermining trust, the process of drafting and negotiating a prenuptial agreement may, in fact, strengthen your relationship. The process requires a full disclosure of your financial situation and involves an open and honest discussion of about how you will handle your money and plan your future. One psychiatrist states: “openly agreed upon rules are likely to be a better foundation for growth than are those latent rules that surface and prove to be either disagreeable or downright outrageous (‘What do you mean, you don’t do dishes?’)”
Fifth, prenups prepare you for marriage. Sooner or later you are going to have to talk about money issues. Why not do it now and save heartache and trouble later on? After your honeymoon is over you will soon find out how earning and spending money is an integral part of your marriage. The Catholic Church recognized this fact and incorporates a prenuptial dialogue in a marital preparation process called “Pre-Cana.”
Sixth, prenups can be drafted to protect both spouses not just a wealthy spouse.
Seventh, it just makes sense. No-one plans on their house burning down, ending up in a nursing home or suffering a disability but they still take out insurance. As Dr. Ruth says: “We live in such a litigious society. Nobody knows what life brings. Hopefully we will never need it. What’s the big deal? Let’s do it and give it to the attorneys…for the new millennium, a prenup is part of a mature relationship, based on love, mutual trust and optimism.”
Do I need a California Prenup even if I don’t plan to live here?
Even if you do not live here when you divorce, California can still assert jurisdiction over you for support, attorneys' fees, and the division of property. California also applies the doctrine of divisible divorce which means that each aspect of a divorce is treated differently for jurisdictional purposes. For example, a California court could assert jurisdiction over custody and visitation matters but relinquish property matters to the Court of another state. Consider the billion dollar divorce of David and Susanne Sapperstein. Vanity Fair reported that David Sapperstein left was his wife of 23 years for their Swedish nanny. Suzanne lived in Los Angeles with their youngest child in what is reported to be the most expensive mansion in Los Angeles. During a trip to France on the couple’s gulf stream jet, David said they had to stop over in Houston, Texas where he had business. Once they hit the ground, his attorneys served Suzanne with divorce papers. A few days later she filed divorce papers in California. Why? California has more liberal rules on alimony (spousal support) than Texas which ends after three years.
Even though a California prenup is designed to apply only if you are divorced in California, it may apply if you are divorced in another state. That result is not guaranteed but there is a good chance that it will be. If you want to make sure that your California prenup is enforced in other states you need to retain counsel in that state to review the prenup.
There is an even greater risk that a California prenup will not be enforced in a foreign country. Many countries such as Denmark, France and Germany recognize prenups but have different marital laws and specific procedures for the execution and registration of prenups. England and Australia do not recognize prenups but some courts have taken them into account when dividing property. If you plan on living in another country you should consult with a family law attorney in that jurisdiction.
Sex and Prenups
California prenups cannot regulate child custody or child support. They cannot regulate your behavior and they cannot punish a spouse for being unfaithful. In one highly publicized prenup, a New Mexico couple agreed that they should have sex at least five times a week, pay for everything in cash and not leave clothes strewn on the floor. Those provisions wouldn’t be enforceable in California. It should be noted that the couple are reportedly still happily married.
Religion and Prenups
Prenups cannot regulate the practice of religion. However, in one important area prenups can provide a spouse with an important religious protection. Under traditional Jewish law, if a husband does not grant his wife a religious divorce or “get,” the woman is considered an “agunah” and cannot get re-married. California does not have a “get” law like New York so in order to protect a Jewish woman’s right to a “get” it is suggested that a prenup contains a penalty clause that the husband pays a fine for every day he does not grant a “get.”
Prenups and Community Property
In the absence of a prenup, California community property law provides that all community property (any property acquired during the marriage while the parties are living in California that is not a gift or an inheritance) is divided equally upon divorce. It usually does not matter if the property is in one party’s name – if it is acquired during marriage, with some exceptions, it is community property. Property owned before marriage is separate property and cannot be divided by a court and belongs to that party. However, efforts to improve, enhance or contribute to separate property can create a community property interest in that separate property. That is where a prenup comes into play. A prenup can provide that your spouse never acquires a community interest in your separate property.
If you do not have a prenup, the determination of what is separate and what is community property often requires the use of forensic accountants. In high-asset cases, the accounting and legal fees can run into the hundreds of thousands, or even millions, of dollars. Furthermore, in determining whether a business owned before marriage has any community interest, the property must be valued both at the time of marriage and at the time of separation, and sometimes again at the time of the divorce trial which can be years after filing for divorce. Similar calcula¬tions are made for real estate and intellectual property. Furthermore, earnings are commu¬nity property. If you married without a prenup and earned $50,000,000 during your marriage, that entire sum would be community property. That means your spouse would own one-half of that property and anything purchased with that property.
Furthermore, if you lost any of that money in a bad investment or mismanaged your assets, your spouse may have an action against you for a breach of fiduciary duty. And if you reinvested those earnings in a separate property business or any other property, your spouse could request that you reimburse the community for the money spent. In a long term marriage that tracing may be impossible to do and sometimes the person claiming a separate property interest forfeits their claim.
Under California law, the proceeds of loans are community property under certain circumstances. If an individual owns compa¬nies and uses financing or factoring to finance a business, the loan proceeds can be so commingled in the business that the owner can end up losing his separate property interest. Also if you refinance your real estate, you may be contributing community property to your separate property asset.
A prenup can regulate all aspects of how separate and community property assets and liabilities are treated. In the case of a financially independent couple with their own resources a prenup can provide that all income, assets and debts acquired or incurred remain separate property. Alternatively, in lieu of a community property distribution, a wealthier spouse might agree to pay the other spouse a lump sum based on the length of the marriage. On the other hand, a couple might agree that all property accumulated during the marriage remain community property but that certain property brought into the marriage such as family businesses or funds always remains separate property. Since each situation is different a prenup should be carefully tailored to meet the circumstances of each couple.
Spousal Support
California law allows you to waive or limit spousal support as long as the provision is not deemed unconscionable. Unfortunately, as yet there is no case law defining the word "unconscionable." If there is a significant disparity in the amount of wealth between the parties, instead of waiving spousal support, the prenup may place limits on the amount and duration of support. The amount and duration can be based on a formula which takes account of the income of the parties and the duration of the marriage.
Do it right
When Steven Spielberg and actress Amy Irving divorced after four years, she argued that their prenup which was written on the back of a napkin was not enforceable because she was not represented by an attorney. The Judge agreed and she received a $100 million settlement. When Spielberg married Kate Kapshaw, both were represented by attorneys when they signed a prenup.
© 2007 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
By Warren R. Shiell Esq., Attorney at law, at http://www.la-familylaw.com
Article Source: http://EzineArticles.com/?expert=Warren_R._Shiell
Thursday, August 16, 2007
Friday, August 10, 2007
Divorce Glossary
Here are some of the legal terms you should know during the divorce process.
By David M. Wildstein, Esq.
Case Information Statement (CIS)
A multi-page financial document that must be completed by each party, describing the details of income, expenses, assets and debts.
Certification
A sworn document describing facts of a particular issue, similar to an affidavit. A certification is filed with a Notice of Motion or in reply to a Notice of Motion brought by your spouse.
Deposition
Procedure during which an attorney questions a witness or a party to the divorce under oath and the questions and answers are transcribed by a court reporter.
Discovery
Exchange of information regarding all issues relevant to your divorce. The most frequently used forms of discovery are interrogatories and depositions.
Early Settlement Panel (ESP)
A conference at the Court House attended by you, your spouse, and both attorneys. The facts of your case are presented to a panel of family-law practitioners who volunteer their time to assist in the settlement of cases. These panelists consider the specific circumstances of your case and make a recommendation for settlement. While non-binding, this recommendation frequently helps the parties and their attorneys reach a settlement agreement.
Equitable Distribution
The statutory right to receive a fair distribution of assets acquired during the marriage.
Interrogatories
Written questions used as part of discovery which are answered and sworn to by each party.
Joint Custody
There are two aspects to joint custody:
Joint legal custody means that the parties share the rights and responsibilities for making decisions concerning the significant aspects of a child's life, including educational, medical, and religious issues.
Joint physical custody means that the child lives part of the time with each parent. The nature and extent of sharing of time may vary significantly.
It is not unusual for parents to have joint legal custody while one parent has sole or primary physical custody and the other has substantial time with a child.
Judgment of Divorce
A document that grants a divorce and reflects the CourtÕs decision following trial, resolving all issues such as alimony, support, custody, visitation and equitable distribution.
If the parties settle out of court, the Judgment of Divorce includes all the terms of the Settlement Agreement.
Notice of Motion
To obtain a court order for support, discovery, or other relief, either party may file a Notice of Motion with the Court. The Notice is supported by the certification of the party seeking the relief.
Most often, the Court permits attorneys to appear in court and make arguments on behalf of their clients on the return date of the motion. Clients may appear in court on motion days to observe the procedure but are rarely allowed to testify. Occasionally, the Court makes its decision solely by reading the papers submitted. After the decision is entered, one of the lawyers prepares an order that documents the judge's ruling.
Order
A document that reflects the Court's decision after hearing a Motion or Order to Show Cause.
Order to Show Cause
When emergency relief is sought from the Court, a party may file an Order to Show Cause. For example, a party might file an Order to Show Cause when there is an imminent threat that funds will be dissipated or that a child will be taken out of the State.
Trial
If the parties cannot resolve their differences, the parties and their witnesses testify and present evidence in open court, subject to interrogation by the other spouse's lawyer. At the conclusion of the trial, the Court renders a decision called a Judgment.
David M. Wildstein is a senior partner in Wilentz, Goldman & Spitzer, and Chair of the firm's Family Law Department. He has exclusively practiced family law for over 25 years, and he has been a member of several New Jersey Supreme Court Committees that have shaped the rules and procedures for family law in this State. He is the author of a helpful guidebook entitled Divorce and Child Custody: Frequently Asked Questions.
By David M. Wildstein, Esq.
Case Information Statement (CIS)
A multi-page financial document that must be completed by each party, describing the details of income, expenses, assets and debts.
Certification
A sworn document describing facts of a particular issue, similar to an affidavit. A certification is filed with a Notice of Motion or in reply to a Notice of Motion brought by your spouse.
Deposition
Procedure during which an attorney questions a witness or a party to the divorce under oath and the questions and answers are transcribed by a court reporter.
Discovery
Exchange of information regarding all issues relevant to your divorce. The most frequently used forms of discovery are interrogatories and depositions.
Early Settlement Panel (ESP)
A conference at the Court House attended by you, your spouse, and both attorneys. The facts of your case are presented to a panel of family-law practitioners who volunteer their time to assist in the settlement of cases. These panelists consider the specific circumstances of your case and make a recommendation for settlement. While non-binding, this recommendation frequently helps the parties and their attorneys reach a settlement agreement.
Equitable Distribution
The statutory right to receive a fair distribution of assets acquired during the marriage.
Interrogatories
Written questions used as part of discovery which are answered and sworn to by each party.
Joint Custody
There are two aspects to joint custody:
Joint legal custody means that the parties share the rights and responsibilities for making decisions concerning the significant aspects of a child's life, including educational, medical, and religious issues.
Joint physical custody means that the child lives part of the time with each parent. The nature and extent of sharing of time may vary significantly.
It is not unusual for parents to have joint legal custody while one parent has sole or primary physical custody and the other has substantial time with a child.
Judgment of Divorce
A document that grants a divorce and reflects the CourtÕs decision following trial, resolving all issues such as alimony, support, custody, visitation and equitable distribution.
If the parties settle out of court, the Judgment of Divorce includes all the terms of the Settlement Agreement.
Notice of Motion
To obtain a court order for support, discovery, or other relief, either party may file a Notice of Motion with the Court. The Notice is supported by the certification of the party seeking the relief.
Most often, the Court permits attorneys to appear in court and make arguments on behalf of their clients on the return date of the motion. Clients may appear in court on motion days to observe the procedure but are rarely allowed to testify. Occasionally, the Court makes its decision solely by reading the papers submitted. After the decision is entered, one of the lawyers prepares an order that documents the judge's ruling.
Order
A document that reflects the Court's decision after hearing a Motion or Order to Show Cause.
Order to Show Cause
When emergency relief is sought from the Court, a party may file an Order to Show Cause. For example, a party might file an Order to Show Cause when there is an imminent threat that funds will be dissipated or that a child will be taken out of the State.
Trial
If the parties cannot resolve their differences, the parties and their witnesses testify and present evidence in open court, subject to interrogation by the other spouse's lawyer. At the conclusion of the trial, the Court renders a decision called a Judgment.
David M. Wildstein is a senior partner in Wilentz, Goldman & Spitzer, and Chair of the firm's Family Law Department. He has exclusively practiced family law for over 25 years, and he has been a member of several New Jersey Supreme Court Committees that have shaped the rules and procedures for family law in this State. He is the author of a helpful guidebook entitled Divorce and Child Custody: Frequently Asked Questions.
The Child's Bill of Rights
By Stacy D. Phillips
Our nation was founded with certain inalienable rights, rights that were won after a monumental struggle to establish a society in which all its citizens could be free and secure within its borders. Since the concept we all cherish became a reality more than 225 years ago, we have done a fairly good job of eventually including just about everyone under the Constitutional umbrella we know as the Bill of Rights.
I say "just about everyone", because it was only a few years ago that someone got the long overdue notion of including in the equation the victims of marital and paternity wars -- the children. It finally came to our attention that children had been largely ignored as citizens who must be accorded full protection under the law, even if it meant creating another Bill of Rights.
And so it came to pass that a little-known document has been drafted exclusively for the children of divorce and paternity cases known as the Child's Bill of Rights, a set of guidelines established and endorsed by the courts in all 50 states that must be preserved in any custody arrangement.
While each state's judicial system has its own laws governing divorce and custody issues, all the states embrace a general blueprint that was originally designed by the Wisconsin Supreme Court. I have taken the court's concept a step further by adding a few articles so it now resembles the U.S. Constitution's version even more strongly.
Divorce and paternity are anguishing processes for adults, but they must remember that dissolution and custody issues have the potential to traumatize their children, indelibly injuring them to the extent it may endanger their growth into productive, loving adults.
Accordingly, here is our nation's other Bill of Rights, one that each American parent should store with their other treasured documents. Like the original, there are 10 of them:
Divorcing parents shall enact no rules or regulations that impact each child's rights to be treated as a human being, recognized to have unique feelings, ideas and desires consistent with that of any other individual.
Each child has a right to a continuing relationship with both parents.
Each child is entitled to continuing care and proper guidance from each parent.
Each child has the right not to be unduly influenced by either parent so as to view the other parent differently.
Each child is entitled to an explanation that the impending action of divorce was in no way caused by the child's actions.
Each child has the right to express love, friendship and respect for both parents.
Each child is entitled to honest feedback with respect to a change in the family structure and its impact on the changing relationships of the family.
Each child has the right to maintain regular contact with both parents and to have a clear explanation for any change in contact.
Each child has a right to never be employed as a manipulative bargaining tool in custody negotiations or in any interaction between the parents.
Each child is entitled to a safe, healthy and loving living environment.
I cannot emphasize strongly enough the importance of these guidelines. I have been a participant in hundreds if not thousands of divorce, custody and paternity cases, and all too often, the adults become so wrapped up in their own emotions that the children are ignored.
The turmoil that goes hand-in-glove with dissolution or custody proceeding is wrenching for everyone, but children are the least equipped to deal with the irrevocable separation of their parents. We have to remember to be there for them, especially at the most anguishing of times.
From my perspective, it is a matter of priorities. And the children should be priority Number One.
Stacy D. Phillips is a founding partner of Phillips, Lerner & Lauzon, L.L.P., a leading Los Angeles family law firm, which has represented a broad spectrum of clients facing serious paternity, custodial and marital issues. She is also a certified family law specialist. She can be contacted at (310) 277-7117 or by email at sdpdissoqueen@plllaw.com. View her Divorce Magazine profile online.
Our nation was founded with certain inalienable rights, rights that were won after a monumental struggle to establish a society in which all its citizens could be free and secure within its borders. Since the concept we all cherish became a reality more than 225 years ago, we have done a fairly good job of eventually including just about everyone under the Constitutional umbrella we know as the Bill of Rights.
I say "just about everyone", because it was only a few years ago that someone got the long overdue notion of including in the equation the victims of marital and paternity wars -- the children. It finally came to our attention that children had been largely ignored as citizens who must be accorded full protection under the law, even if it meant creating another Bill of Rights.
And so it came to pass that a little-known document has been drafted exclusively for the children of divorce and paternity cases known as the Child's Bill of Rights, a set of guidelines established and endorsed by the courts in all 50 states that must be preserved in any custody arrangement.
While each state's judicial system has its own laws governing divorce and custody issues, all the states embrace a general blueprint that was originally designed by the Wisconsin Supreme Court. I have taken the court's concept a step further by adding a few articles so it now resembles the U.S. Constitution's version even more strongly.
Divorce and paternity are anguishing processes for adults, but they must remember that dissolution and custody issues have the potential to traumatize their children, indelibly injuring them to the extent it may endanger their growth into productive, loving adults.
Accordingly, here is our nation's other Bill of Rights, one that each American parent should store with their other treasured documents. Like the original, there are 10 of them:
Divorcing parents shall enact no rules or regulations that impact each child's rights to be treated as a human being, recognized to have unique feelings, ideas and desires consistent with that of any other individual.
Each child has a right to a continuing relationship with both parents.
Each child is entitled to continuing care and proper guidance from each parent.
Each child has the right not to be unduly influenced by either parent so as to view the other parent differently.
Each child is entitled to an explanation that the impending action of divorce was in no way caused by the child's actions.
Each child has the right to express love, friendship and respect for both parents.
Each child is entitled to honest feedback with respect to a change in the family structure and its impact on the changing relationships of the family.
Each child has the right to maintain regular contact with both parents and to have a clear explanation for any change in contact.
Each child has a right to never be employed as a manipulative bargaining tool in custody negotiations or in any interaction between the parents.
Each child is entitled to a safe, healthy and loving living environment.
I cannot emphasize strongly enough the importance of these guidelines. I have been a participant in hundreds if not thousands of divorce, custody and paternity cases, and all too often, the adults become so wrapped up in their own emotions that the children are ignored.
The turmoil that goes hand-in-glove with dissolution or custody proceeding is wrenching for everyone, but children are the least equipped to deal with the irrevocable separation of their parents. We have to remember to be there for them, especially at the most anguishing of times.
From my perspective, it is a matter of priorities. And the children should be priority Number One.
Stacy D. Phillips is a founding partner of Phillips, Lerner & Lauzon, L.L.P., a leading Los Angeles family law firm, which has represented a broad spectrum of clients facing serious paternity, custodial and marital issues. She is also a certified family law specialist. She can be contacted at (310) 277-7117 or by email at sdpdissoqueen@plllaw.com. View her Divorce Magazine profile online.
Common Law Relationships in Canada
Common-law relationships are on the rise: according to Statistics Canada, the number of common-law couples is growing at 16 times the rate of marriages. There's a lot of confusion about the rights and obligations arising from this kind of relationship -- especially when it breaks up. Here's a brief primer.
By Malcolm Kronby, LL.B., Q.C.
Through a long period of English history, competent individuals could marry without the intervention of any civil or religious authority. If there was at the time a statute governing marriage, this was not the only way a marriage could be formed. Parties could be married at "common law," that is, quite apart from "legal" marriage or accordance with the formal requirements of a Marriage Act, such as issuance of a licence, and a ceremony of solemnization conducted by some person officially empowered to do so.
To create a common-law marriage, there had to be an agreement between the parties, as in some exchange of promises; legal capacity to make a contract, e.g., sufficient age, sound mind and free will; cohabitation; consummation by sexual intercourse; and public and continued recognition of the relationship.
After a lengthy controversy, a statute was passed in England in 1753 aimed at the abolition of common-law marriages and secret marriages, and that contained strict requirements for a valid marriage. By 1844, as a result of judicial decisions, it was clear that no valid marriage could be formed at common law in England, and that this was the state of the law at least back to the 1753 statute.
The effect of the English statute in Canada is not as clear as it should be after all these years. Probably the statute was not imported into Canada, so that in every province except Quebec it is possible to have a valid marriage in very special circumstances without strict compliance with the provincial Marriage Acts setting out the formal requirements. For instance, parties may not absolutely need a marriage licence if they go through a ceremony of some sort with the intent to be validly married, then live together, particularly if there are children of the union. This body of law is extremely technical. Our courts have a long-standing tendency to narrow the possibility of a valid marriage of this sort.
Also, the courts will interpret formal validity of marriage in accordance with the law of the place where the marriage was solemnized. Many places do not have procedures as strict as our provinces, or adverse conditions, such as war, make these procedures impractical.
So, although it is possible to create a common-law marriage recognized in Canada in the sense that common-law marriage hasn't been specifically abolished, no one who wants the legal state of marriage should fail to comply with all of the statutory rules of the place where the marriage is performed.
What constitutes a "Common-Law" Marriage?
We generally use the term "common-law marriage" to describe the voluntary union of a man and woman in a lasting relationship resembling marriage. The parties may indeed behave as if married, refer to each other as if married, and be recognized or assumed to be married in their community. In fact they are not married -- no matter how long they have lived together, no matter how many children they have.
They may have specific rights as conferred by statutes. For instance, they may treat each other as dependants for tax purposes, and take the same deductions as if they were married. They have mutual obligations to their children, with all rights of custody and access, as if married. They receive Child Tax Benefits. They can insure each other's life and qualify for pension benefits.
In Ontario, they have a mutual support obligation at law because of the Family Law Act. This arises because the Act states: "Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so," and defines "spouse" to include either of a man and woman not being married to each other who have cohabited:
a) continuously for a period of not less than three years; or
b) in a relationship of some permanence,if they are the natural or adoptive parents of a child.
Almost exactly the same words are used in the Ontario Succession Law Reform Act to permit an unmarried dependent "spouse" to claim against an estate. One remarkable case dealt with the effect of an incomplete sex change. The parties, both born female, had in the course of their lives married and had children. After that, they formed a relationship together that endured for twenty years. One of them, taking the male role, had extensive psychotherapy, hormonal injections, a double mastectomy and a panhysterectomy but no genital surgery. He (she) had changed the gender designation on his (her) birth certificate. They separated, and the male partner claimed support from the female. The Court held that they were not a man and woman who had cohabited, since the sex change was incomplete, and reversible if hormone injections were stopped. The mastectomy and hysterectomy were inconclusive, since many women have this surgery without any question of their gender. The result might well have been different if there had been genital surgery.
Property rights
Parties who live together as if married have no property rights under the Family Law Act, so that there's no statutory entitlement to sharing of assets if they separate. Parties who live together may have property rights against each other based on the same legal principles that govern property rights between any unrelated people. This law is founded on the idea of compensating a person for the contribution he or she makes to the property of another, by imposition of a constructive or implied trust from the recipient in favour of the contributor.
The Supreme Court of Canada considered the case of a couple who lived together unmarried for about twenty years, during which they worked together to build a successful and prosperous beekeeping business, registered in the name of the man. The Court found that the woman's contribution in equal work and effort gave rise to a constructive trust in her favour for one-half of the property and business assets. There have been many other cases in which a share of property or some money award has been given to a party in a "common-law" union.
Cohabitation agreements
Parties who live together can create their own support obligations and property rights by making a "cohabitation agreement." The Family Law Act specifically permits this, in the following words:
"A man and a woman who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit, or on death, including:
a) ownership in or division of property
b) support obligations
c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children
d) any other matter in settlement of their affairs."
To be valid, a cohabitation agreement must be in writing, signed by the parties, and witnessed. If the parties to a cohabitation agreement subsequently marry, in the absence of specific words to the contrary, their agreement becomes a marriage contract.
This article has been edited and excerpted with permission from the seventh edition of Canadian Family Law (Stoddart Publishing, $15.95) by Malcolm Kronby, LL.B., Q.C. This book is invaluable for anyone who needs to understand the current laws regarding marriage, separation, divorce, child custody, support, property rights, and much, much more. Malcolm Kronby is a respected Toronto lawyer with Epstein Cole, and an instructor in family law at Osgoode Hall.
Common Facts
By Diana Shepherd
Released in October 1997, the 1996 Census states that: "Of all family structures, growth was strongest among common-law couples." The Census defines common-law couples as "two persons of the opposite sex who are not legally married to each other, but live together as husband and wife in the same dwelling." Here's some food for thought from this Census:
between 1991 and 1996, the number of common-law families rose by 28%, while married-couple families increased by only 1.7%
in 1996, there were 434,950 common-law couples with children at home -- up a whopping 47% from '91
in Ontario, there were 164,550 children living in common-law families in '96 -- a 45% jump from '91
common-law and single-parent families make up more than a quarter of the 7.8 million families in Canada; ten years ago, they accounted for one-fifth of the total
almost half of all Canadian common-law couples live in Quebec
By Malcolm Kronby, LL.B., Q.C.
Through a long period of English history, competent individuals could marry without the intervention of any civil or religious authority. If there was at the time a statute governing marriage, this was not the only way a marriage could be formed. Parties could be married at "common law," that is, quite apart from "legal" marriage or accordance with the formal requirements of a Marriage Act, such as issuance of a licence, and a ceremony of solemnization conducted by some person officially empowered to do so.
To create a common-law marriage, there had to be an agreement between the parties, as in some exchange of promises; legal capacity to make a contract, e.g., sufficient age, sound mind and free will; cohabitation; consummation by sexual intercourse; and public and continued recognition of the relationship.
After a lengthy controversy, a statute was passed in England in 1753 aimed at the abolition of common-law marriages and secret marriages, and that contained strict requirements for a valid marriage. By 1844, as a result of judicial decisions, it was clear that no valid marriage could be formed at common law in England, and that this was the state of the law at least back to the 1753 statute.
The effect of the English statute in Canada is not as clear as it should be after all these years. Probably the statute was not imported into Canada, so that in every province except Quebec it is possible to have a valid marriage in very special circumstances without strict compliance with the provincial Marriage Acts setting out the formal requirements. For instance, parties may not absolutely need a marriage licence if they go through a ceremony of some sort with the intent to be validly married, then live together, particularly if there are children of the union. This body of law is extremely technical. Our courts have a long-standing tendency to narrow the possibility of a valid marriage of this sort.
Also, the courts will interpret formal validity of marriage in accordance with the law of the place where the marriage was solemnized. Many places do not have procedures as strict as our provinces, or adverse conditions, such as war, make these procedures impractical.
So, although it is possible to create a common-law marriage recognized in Canada in the sense that common-law marriage hasn't been specifically abolished, no one who wants the legal state of marriage should fail to comply with all of the statutory rules of the place where the marriage is performed.
What constitutes a "Common-Law" Marriage?
We generally use the term "common-law marriage" to describe the voluntary union of a man and woman in a lasting relationship resembling marriage. The parties may indeed behave as if married, refer to each other as if married, and be recognized or assumed to be married in their community. In fact they are not married -- no matter how long they have lived together, no matter how many children they have.
They may have specific rights as conferred by statutes. For instance, they may treat each other as dependants for tax purposes, and take the same deductions as if they were married. They have mutual obligations to their children, with all rights of custody and access, as if married. They receive Child Tax Benefits. They can insure each other's life and qualify for pension benefits.
In Ontario, they have a mutual support obligation at law because of the Family Law Act. This arises because the Act states: "Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so," and defines "spouse" to include either of a man and woman not being married to each other who have cohabited:
a) continuously for a period of not less than three years; or
b) in a relationship of some permanence,if they are the natural or adoptive parents of a child.
Almost exactly the same words are used in the Ontario Succession Law Reform Act to permit an unmarried dependent "spouse" to claim against an estate. One remarkable case dealt with the effect of an incomplete sex change. The parties, both born female, had in the course of their lives married and had children. After that, they formed a relationship together that endured for twenty years. One of them, taking the male role, had extensive psychotherapy, hormonal injections, a double mastectomy and a panhysterectomy but no genital surgery. He (she) had changed the gender designation on his (her) birth certificate. They separated, and the male partner claimed support from the female. The Court held that they were not a man and woman who had cohabited, since the sex change was incomplete, and reversible if hormone injections were stopped. The mastectomy and hysterectomy were inconclusive, since many women have this surgery without any question of their gender. The result might well have been different if there had been genital surgery.
Property rights
Parties who live together as if married have no property rights under the Family Law Act, so that there's no statutory entitlement to sharing of assets if they separate. Parties who live together may have property rights against each other based on the same legal principles that govern property rights between any unrelated people. This law is founded on the idea of compensating a person for the contribution he or she makes to the property of another, by imposition of a constructive or implied trust from the recipient in favour of the contributor.
The Supreme Court of Canada considered the case of a couple who lived together unmarried for about twenty years, during which they worked together to build a successful and prosperous beekeeping business, registered in the name of the man. The Court found that the woman's contribution in equal work and effort gave rise to a constructive trust in her favour for one-half of the property and business assets. There have been many other cases in which a share of property or some money award has been given to a party in a "common-law" union.
Cohabitation agreements
Parties who live together can create their own support obligations and property rights by making a "cohabitation agreement." The Family Law Act specifically permits this, in the following words:
"A man and a woman who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit, or on death, including:
a) ownership in or division of property
b) support obligations
c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children
d) any other matter in settlement of their affairs."
To be valid, a cohabitation agreement must be in writing, signed by the parties, and witnessed. If the parties to a cohabitation agreement subsequently marry, in the absence of specific words to the contrary, their agreement becomes a marriage contract.
This article has been edited and excerpted with permission from the seventh edition of Canadian Family Law (Stoddart Publishing, $15.95) by Malcolm Kronby, LL.B., Q.C. This book is invaluable for anyone who needs to understand the current laws regarding marriage, separation, divorce, child custody, support, property rights, and much, much more. Malcolm Kronby is a respected Toronto lawyer with Epstein Cole, and an instructor in family law at Osgoode Hall.
Common Facts
By Diana Shepherd
Released in October 1997, the 1996 Census states that: "Of all family structures, growth was strongest among common-law couples." The Census defines common-law couples as "two persons of the opposite sex who are not legally married to each other, but live together as husband and wife in the same dwelling." Here's some food for thought from this Census:
between 1991 and 1996, the number of common-law families rose by 28%, while married-couple families increased by only 1.7%
in 1996, there were 434,950 common-law couples with children at home -- up a whopping 47% from '91
in Ontario, there were 164,550 children living in common-law families in '96 -- a 45% jump from '91
common-law and single-parent families make up more than a quarter of the 7.8 million families in Canada; ten years ago, they accounted for one-fifth of the total
almost half of all Canadian common-law couples live in Quebec
Who's In Control - You or Them?
By Stacy D. Phillips, Certified Family Law Specialist
The Judge
In the continuation of a six-part series of excerpts from the book, Divorce: It’s All About Control—How to Win the Emotional, Psychological and Legal Wars by certified family law specialist, Stacy D. Phillips, she discusses the different “types” that tend to control a divorcee’s divorce process in the courtroom. In this segment, Ms. Phillips details the characteristics of the “judge variety”—those individuals who often assert authority taking complete control of a couple’s divorce, leaving them at the mercy of the courts.
The "Heard-It-Alls" This category of judge has little patience for the daily routine that goes on in the courtroom, between counsel, or for that matter, the parties, and refuses to grant continuances for “frivolous” reasons. Heard-It-Alls become easily fed up with standard excuses and can see past every histrionic ploy. Don’t try to pull anything over on a Heard-It-All because they already have heard it all! This moniker suggests a negative connotation. However, the label can equally apply to a very experienced, no-nonsense, truly fine judicial officer who, indeed, does know it all.
The "Peacemakers"
Contrary to the Heard-It-Alls, the Peacemaker is the type of courtroom boss who attempts to get the parties to come to terms and may even suggest the case be continued until additional settlement discussions can take place. The Peacemakers are known for being big on child rights. They also tend to be more sensitive to the perils only divorce can bring. As such, they try to minimize the trauma of the courtroom experience on the parties who come before them.
The "Technocrats"
This group tends to care less about the “people” side of the hearing and rules by the book. They typically have no “heart” and could care less about the parties personally. The way the Technocrat sees it, they have one duty and one alone: to uphold the statutes under which the marital laws fall. Do not try the emotional plea or pray to the Technocrat for mercy. A Technocrat will rule right over you!
The "Equalizers"
This group always wants to do what is fair and usually come from a “one for her, one for him” point of view. They have a “split down the center” mentality. As such, they are calmly focused on dividing everything equally—that includes responsibility for the children, assets and liabilities! Their focus is on equality, whether it means ordering each party to pay his and her fair share of attorneys’ fees or picking up responsibility with regard to the children. Though equitable, this judge does not have any patience for antics, so save any outbursts for the hallways.
The "Solomons"
Often times they are not focused on what might please the parties or what will cause the least amount of havoc. The Solomons are simply trying to get to the bottom line—or at least what they perceive is the right result. Like King Solomon who knew that the real mother would not allow him to “split the baby,” the Solomonesque judge will work with the parties to achieve the right moral result. This approach is particularly important in child custody disputes.
The "Hammers" Highly respected for their familiarity with all the family law statutes—new and old—the Hammers will strictly enforce each code. Low on patience, they are high on authority and not afraid to wield it. The Hammer often reaches a conclusion on the merits, i.e., decides the outcome he/she wants and then strives to reach that result through rulings and/or pressure on the parties. Hammers are particularly dangerous if they are not well versed in the facts or the relevant legal issues. You never want to get on the bad side of Hammers because they can pound you right into the courtroom floor. Good for you if the Hammer rules in your favor, but it could go the other way next time!
The 'Judge's Judge" combines the best traits and skills of each of the judges described above and is thoroughly well versed in all aspects of the law and is not afraid to make the tough call or lean hard on the parties when necessary. This judge does not mind hardball, but insists on fair ball. They can be Solomonesque when appropriate, or address issues with diplomacy. A Judge’s Judge takes each case individually and listens to all the facts before making a decision. These judges are typically compassionate types who make both parties feel as though they were well heard and their requests considered.
The "Lazy Judge" combines the worst traits of the various judges described above (except, of course, the Judge’s Judge). This is the judge who doesn’t read the papers and simply goes through the motions of performing his/her judicial duties. The Lazy Judge may fall back on hyper technicalities, “split the baby,” or do anything else necessary to get the matter off his/her docket. With the other judges—for better or for worse—you can plan. With the Lazy Judge, the outcome is truly unpredictable.
Your judge can be a mixture of some or all of the above. As you go before them, know that they can have tremendous control over your marital circumstances. This can bode well for you or it can be difficult, depending on how the court’s rulings come down, and it can affect you for years to come!
--------------------------------------------------------------------------------
Stacy D. Phillips' book may be purchased through Amazon.com, Barnes & Noble.com and in all major bookstores throughout the country. Visit her website: www.controlyourdivorce.com for more information.
--------------------------------------------------------------------------------
The Judge
In the continuation of a six-part series of excerpts from the book, Divorce: It’s All About Control—How to Win the Emotional, Psychological and Legal Wars by certified family law specialist, Stacy D. Phillips, she discusses the different “types” that tend to control a divorcee’s divorce process in the courtroom. In this segment, Ms. Phillips details the characteristics of the “judge variety”—those individuals who often assert authority taking complete control of a couple’s divorce, leaving them at the mercy of the courts.
The "Heard-It-Alls" This category of judge has little patience for the daily routine that goes on in the courtroom, between counsel, or for that matter, the parties, and refuses to grant continuances for “frivolous” reasons. Heard-It-Alls become easily fed up with standard excuses and can see past every histrionic ploy. Don’t try to pull anything over on a Heard-It-All because they already have heard it all! This moniker suggests a negative connotation. However, the label can equally apply to a very experienced, no-nonsense, truly fine judicial officer who, indeed, does know it all.
The "Peacemakers"
Contrary to the Heard-It-Alls, the Peacemaker is the type of courtroom boss who attempts to get the parties to come to terms and may even suggest the case be continued until additional settlement discussions can take place. The Peacemakers are known for being big on child rights. They also tend to be more sensitive to the perils only divorce can bring. As such, they try to minimize the trauma of the courtroom experience on the parties who come before them.
The "Technocrats"
This group tends to care less about the “people” side of the hearing and rules by the book. They typically have no “heart” and could care less about the parties personally. The way the Technocrat sees it, they have one duty and one alone: to uphold the statutes under which the marital laws fall. Do not try the emotional plea or pray to the Technocrat for mercy. A Technocrat will rule right over you!
The "Equalizers"
This group always wants to do what is fair and usually come from a “one for her, one for him” point of view. They have a “split down the center” mentality. As such, they are calmly focused on dividing everything equally—that includes responsibility for the children, assets and liabilities! Their focus is on equality, whether it means ordering each party to pay his and her fair share of attorneys’ fees or picking up responsibility with regard to the children. Though equitable, this judge does not have any patience for antics, so save any outbursts for the hallways.
The "Solomons"
Often times they are not focused on what might please the parties or what will cause the least amount of havoc. The Solomons are simply trying to get to the bottom line—or at least what they perceive is the right result. Like King Solomon who knew that the real mother would not allow him to “split the baby,” the Solomonesque judge will work with the parties to achieve the right moral result. This approach is particularly important in child custody disputes.
The "Hammers" Highly respected for their familiarity with all the family law statutes—new and old—the Hammers will strictly enforce each code. Low on patience, they are high on authority and not afraid to wield it. The Hammer often reaches a conclusion on the merits, i.e., decides the outcome he/she wants and then strives to reach that result through rulings and/or pressure on the parties. Hammers are particularly dangerous if they are not well versed in the facts or the relevant legal issues. You never want to get on the bad side of Hammers because they can pound you right into the courtroom floor. Good for you if the Hammer rules in your favor, but it could go the other way next time!
The 'Judge's Judge" combines the best traits and skills of each of the judges described above and is thoroughly well versed in all aspects of the law and is not afraid to make the tough call or lean hard on the parties when necessary. This judge does not mind hardball, but insists on fair ball. They can be Solomonesque when appropriate, or address issues with diplomacy. A Judge’s Judge takes each case individually and listens to all the facts before making a decision. These judges are typically compassionate types who make both parties feel as though they were well heard and their requests considered.
The "Lazy Judge" combines the worst traits of the various judges described above (except, of course, the Judge’s Judge). This is the judge who doesn’t read the papers and simply goes through the motions of performing his/her judicial duties. The Lazy Judge may fall back on hyper technicalities, “split the baby,” or do anything else necessary to get the matter off his/her docket. With the other judges—for better or for worse—you can plan. With the Lazy Judge, the outcome is truly unpredictable.
Your judge can be a mixture of some or all of the above. As you go before them, know that they can have tremendous control over your marital circumstances. This can bode well for you or it can be difficult, depending on how the court’s rulings come down, and it can affect you for years to come!
--------------------------------------------------------------------------------
Stacy D. Phillips' book may be purchased through Amazon.com, Barnes & Noble.com and in all major bookstores throughout the country. Visit her website: www.controlyourdivorce.com for more information.
--------------------------------------------------------------------------------
Thursday, August 9, 2007
Agreeing To Part - The Uncontested Divorce
This is fast becoming the major trend in the UK. It is on the rise in the USA too, but not to the extent it is in this country. The picture is mixed in Europe, France being the country with the largest number of couples fighting their way to a highly contested court case and emotionally charged divorces. Does this mean that the British people are surpassing examples of matured and calm understanding when it comes to divorce? Not necessarily, but it does mean that law cases costs a fair bit here, and few are in the position to afford it. Uncontested divorces have become so very popular precisely because the very areas of conflict that are causing the divorce had been resolved as far as possible between the partners before they came to the court. When the areas of conflict are eliminated, there remains little left to do except finish the paperwork and formalities.
Advantages of Uncontested Divorces
There are several direct and indirect advantages of this form of divorce, which have been listed below:
- There is scope to cut costs in a major way. A court battle is not the only thing that requires expenditure, but a lot of money is wasted when a couple fights, and misses out on work, therefore, being unable to earn as they normally do. It is time that costs most, in very literal terms.
- The need to go to a lawyer and spend for it rises only when there are issues into which a lawyer needs to look into. The necessity of calling in a lawyer at all arises only when there are unresolved conflicts between the two parties. If both partners realise that dragging it out in painful and bitter detail will only hamper their work and empty their purses, then there is little need to fear for a situation when the expenses are spiralling out of control.
- Saving time is a major issue, not just where the lawyer or office working hours are concerned. The faster the two partners see reason and agree, they would be able to get the divorce process started. Even a slimmed down DIY will take a minimum number of days if a divorce is to be obtained according to the given laws of the land, where provision has been made for gaps between crucial stages not just to give some time to the court to prepare the papers, but also to let the couple think it over before taking the next step. If everything else except processing the papers is already done beforehand, it is possible to finish the divorce in exactly the minimum time as stated in the law books.
- The emotional toll on both parties is much less in the case of uncontested divorces. It is bad enough they need to part forever, but there is no need to make it worse by screaming and fighting and storming out at each other. At the end of the day, we are human beings, all of us have a bit of good and bad in us, yes, and even the man or woman with whom your partner is having an affair is not an entire villain. The most silently suffering spouse is not entirely saintly either. If we cooperate with each other on the grounds of common humanity, leaving some space for our frailties and some respect for our opinions, the world, maybe, not turn better, but it would be easier to sleep at night. The small mercies that we show each other at times of crisis are the true measures of our humanity. This is not poetry, it is plain hard common sense, and helps to save a few pounds too.
- It is definitely much easier on children if a divorce is uncontested. The greatest victim of the battle between a pair of adults is often the child who has no fault at all, but on whom both parties vent their frustrations. In the process, they scar an entire generation for life, and it is simply unfair. There is no way to justify the suffering of children for their parents’ follies. Our country is already full of unhappy kids; we don’t need to add to the number.
James Walsh is a freelance writer and copy editor. For more information on getting a Divorce see http://www.quickie-divorce.com
Article Source: http://EzineArticles.com/?expert=James_Walsh
http://EzineArticles.com/?Agreeing-To-Part---The-Uncontested-Divorce&id=662791
Subscribe to:
Posts (Atom)
