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If Spouses Reach a Separation Agreement But Later Reconcile, Is the Agreement Still Good?


If Spouses Reach a Separation Agreement But Later Reconcile, Is the Agreement Still Good?

Here’s an interesting legal question arising from a not-uncommon scenario:

Two spouses decide mutually to separate. They negotiate and sign a separation agreement, and duly abide by its terms for a while. They later decide to reconcile, but the reconciliation doesn’t “stick” and they separate for a final time.

The question is this: Is their original separation agreement still good? Does the fact that they reconciled after making it affect its legal validity once they have separated a second time?

It turns out this is yet another “it depends” answer.

The basic rule is that a separation agreement is void once there has been a reconciliation. The Ontario Court of Appeal established this in an older case called Sydor v. Sydor, and it was very recently confirmed in another Ontario case called Ernikos v. Ernikos.

Of course, every rule has its exceptions. The Court in Sydor v. Sydor added that if the agreement contains a clause that overrides that general rule, or if such a clause can be reasonably implied, then the exempted part of the agreement will still be valid and the spouses’ clear intention will be given effect.

Here is an example: Let’s say a couple decides to split up. They agree in their separation agreement that the wife releases her rights in their newly-purchased car to the husband, and they use language to suggest that they consider this a final disposition. They reconcile, then split again. Although legally the whole agreement is technically void because of the reconciliation, the court may view its car-related wording to mean that they considered the husband’s rights to the vehicle are final and binding, regardless of what happens to their relationship in the future. This could form the basis of the court’s divorce order in the upcoming legal proceedings, when it comes time to formally divide the couple’s assets.

The other way to circumvent the general legal rule is to build in express and careful language saying so. Specifically, the separation agreement may define what constitutes a true reconciliation (e.g. requiring at least 60 or 90 days of uninterrupted cohabitation), or it may clarify that the agreement becomes void upon reconciliation except for any transfers, payments or other dispositions made up to that time.

For the full text of the decisions, see:

Sydor v. Sydor, 2003 CanLII 17626 (ON CA)

Ernikos v. Ernikos, 2016 ONSC 6752 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.