Separation agreements outline each spouse’s rights in regards to major issues such as support payments, property, and custody and access (Family Law Act s. 54). Separation agreements become legally binding contracts once they are signed, and should not be taken lightly as they can have a large impact on the future of the entire family. Once signed, both parties must respect and follow the contents of the agreement. There is no limitation period on separation agreements; however, other factors play a role in determining whether the agreement may be set aside by the court.
Made in writing, signed, and witnessed
According to the Family Law Act s. 55(1), separation agreements are enforceable only if the contract has been made in writing, signed by both parties, and witnessed.
Independent legal advice
It is advisable that both parties have the opportunity to consult with their own lawyer to identify any issues arising out of the contract, as well as the consequences and impact of the separation agreement. Both spouses cannot seek advice from the same lawyer. Obtaining independent legal advice is important because it strengthens the validity of the agreement and may mediate any power imbalances present between the parties, as discussed in Leopold v Leopold.
The court generally upholds agreements that are fair to both spouses. As such, if one spouse has not fully disclosed their assets or liabilities at the time of the separation agreement, it may be set aside by a judge (Family Law Act s. 56(4)(a)). In Rick v Brandsema, the Supreme Court overturned a separation agreement that was made in circumstances where a spouse deliberately omitted to make a full and honest financial disclosure.
Duress or undue influence
If a separation agreement was signed under duress or under influence by one of the spouses, the contract may be unenforceable. In this instance, the spouse wishing to set aside the contract will have to demonstrate that the contract was signed under psychological or emotional pressure. In Toscano v Toscano, the court explained that where there are “any circumstances of oppression, pressure, or other vulnerabilities, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation”, the agreement may be set aside.
Best interests of children
Where a separation agreement does not ensure that the best interests of the child are met, it may be set aside. This may pertain to the child’s education, moral training, custody or access to either parent, or amount of child support payable (Family Law Act, s. 56(1)(1.1)).
In conclusion, it is important to note that if either you or your spouse does not wish to abide by your separation agreement, it may be negotiated and altered by agreement of the parties. If negotiation with your spouse is unsuccessful, you may choose to take the next step and go to court to request that a judge change the agreement.
For the full text of the decisions, see: