As Family Lawyers, separation agreements are one of the most common legal documents we work on. While couples go into their marriage with the best of intentions and aren’t thinking of separation scenarios, there’s no harm in understanding the facts around these documents before signing them.

Governed by the BC Family Law Act, a Separation Agreement offers a legal roadmap for how shared aspects of the relationship will continue after it ends. A key point to note about these agreements is they can be created in a variety of ways. Some couples use a DIY “Separation Agreement Kit” and some lean on family law expertise before signing. As a result, not all separation agreements will stand up to scrutiny in a court of law…

Scenarios to Watch Out For

For those looking to do some research, Section 93 of the Family Law Act handles the grounds in which a Separation Agreement may be set aside.

Was the agreement procedurally fair at the time it was made?

A Separation Agreement can only be deemed fair if both parties are truthful about the material facts at the time it was written. Courts will analyze the following factors when reaching this decision:

• a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
• a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;
• a spouse did not understand the nature or consequences of the agreement;
• other circumstances that would, under the common law, cause all or part of a contract to be voidable.

Other Situations to be Aware Of

Even if all of the above is satisfied, a court may still decide to set aside the Separation Agreement and replace it with an order to divide property differently if the substance of the agreement is deemed “significantly unfair.”

This will potentially come into play in the following scenarios:

• if a long time has passed since the agreement was written;
• the intention of the spouses, in making the agreement, to achieve certainty;
• the degree to which the spouses relied on the terms of the agreement

Find Out More

Westside Family Law can assist with any legal aspect of the separation agreement process. Contact us and we’ll be happy to assist.