This case is another cautionary tale of the perils that former partners face when attempting to hammer out their own separation agreements without the benefit of independent legal representation.
In Zheng v. Jiang, the couple had signed a document they called a “Divorce Agreement.” The document was not witnessed, and was prepared without legal advice and without the parties making any financial disclosure to each other. The husband apparently showed up at her residence, unannounced, with the fully prepared document ready for her to sign. It took less than 30 minutes for the two of them to agree on the details.
The document had been prepared at the instigation of the wife, who at one point had moved to a women’s shelter after the husband assaulted her. When she called the husband to set up a meeting, they had not been in contact since their separation.
However, the Divorce Agreement was predicated on the wife’s misconception that both she and the husband needed to consent to the divorce which, although not true under the laws of Canada, was based on the wife’s experiences in her native China. Based on this misconception, the wife agreed to the Divorce Agreement because the husband told her that unless she agreed to its terms, he would fight her on the divorce. The wife later explained that she knew it was unfair to her, but she felt it was the only way she could get the divorce she wanted.
The terms of the Divorce Agreement were rather one-sided in the husband’s favour: the wife could keep their car and a television set (that still had more than $4,000 in payments owing). The husband would keep the matrimonial home, and the remainder of their possessions. The husband also agreed to pay about $550 per month in support to the wife and their child.
When the matter came before the court, the husband asserted that the Divorce Agreement should be upheld, because it was fair at the time. Indeed, he claimed it was still fair now, because of the mortgage payments he had subsequently made.
The court disagreed. In these circumstances, the purported Divorce Agreement (which was really more of a “separation agreement” under Canadian law) was unenforceable. It was in clear breach of the Family Law Act which provides that a domestic contract is unenforceable unless “made in writing, signed by the parties and witnessed.” Moreover, the husband’s position was inconsistent: he had not even paid the child support that he promised under the Divorce Agreement, and had prevented the wife from taking delivery of the television set that she paid for. The agreement was also incomplete in several important respects, and did not deal with the equalization of their net family property.
As such, the court was possessed of the power to deal on its own accord with the ownership of the couple’s property on separation. And despite some unusual circumstances where past courts have enforced a separation agreement despite the fact that it was not witnessed, the court found that this was not one of the exceptional cases.
In striking down the Divorce Agreement as unenforceable the court summed it up this way:
It seems to me that this is the very type of homemade agreement entered into by spouses who are not properly informed as to the facts and law surrounding their circumstances that [the Family Law Act] was designed to deter. I agree with the statement in Sagl v. Sagl … that “the policy of the Act is to discourage ‘kitchen table’ agreements.”
For the full text of the decision, see:
Zheng v. Jiang, 2012 ONSC 6043 (CanLII) http://canlii.ca/t/ftf2c