When is a separation agreement not worth the paper it is written on?

Often people ask about whether a separation agreement is really legal or whether it can be ignored or overturned by one spouse in the future. Sometimes called a divorce agreement or minutes of settlement, the separation agreement is simply a contract between spouses, or former spouses, dealing with such things as the division of property, spousal support, child support, child custody and access.

Like any other contract, one party can always ask the court to throw it out or rewrite it. Of course that does not guarantee that the court will actually do that, but one can ask. The only way to be close to certain that your agreement is binding would be to have it reviewed by a judge. But you are not going to know that unless you actually find yourself arguing about it in court. Otherwise, there is no registration process or any other way to be sure.

Now, having said that a separation agreement was similar to any other contract in that it is possible to ask the court to overturn it, it is also in some ways unlike any other contract. In fact the Supreme Court of Canada said as much citing the uniqueness of the negotiating environment. As a result there is a greater possibility that a judge would refuse to follow a separation agreement then a commercial or other agreement.

One way you can increase the chances that a court would consider your agreement binding is to make sure that the separation agreement is not only fair to yourself but also to your spouse. Otherwise you run the risk that the court will consider the separation agreement “unconscionable” and substitute its own judgment for the terms you believed that you had agreed upon.

In a recent Supreme Court of Canada decision the court declared a separation agreement to be unconscionable and ordered a man from British Columbia to pay over $6, to his spouse. The couple had split in 2 after being married for 27 years. It seemed the court had 2 problems with the separation agreement:

. The wife had a unhealthy mental state;

2. The husband had failed to disclose the true financial situation to the wife and was hiding some of the assets.

The husband had argued that the wife had received legal advice and that this made up for the fact that she had an unhealthy mental state. But this did not satisfy the court which stated that it was the combination of the wife’s mental state and the husband taking advantage of this by hiding assets that rendered the separation agreement unconscionable.

The lesson to be learned from this case is that in order to maximize the enforceability of your separation agreement you need to make sure that negotiations are conducted fairly and that both parties have access to all the important details.