It is a general legal principle that an agreement freely reached by two individuals will be respected and enforced by the Court. However, agreements between two separating spouses have special considerations, as there is more opportunity for the individuals to be not at their best when they make their bargain. Because of this, separation agreements are treated with more care, and the Court retains the jurisdiction to intervene is certain circumstances.
It is important to understand these circumstances when negotiating your own separation agreement, as if your agreement fits any of the following scenarios, it may be overturned, set aside, or varied by the Court:
- Non-disclosure of assets, debt, or income,
- Procedural unfairness,
- One spouse did not understand the nature or consequences of the Agreement, and
- In BC, if the agreement is significantly unfair, having regard to the length of time that has passed since the agreement was made, the intention of the parties in making the agreement to achieve certainty, and the degree to which the parties have relied upon the agreement.
Even when you are negotiating an agreement with your spouse yourself, the best way to avoid these scenarios is to receive legal advice about the terms of your agreement, and having a formal separation agreement prepared by your lawyer. Your lawyer can give you advice on the financial information you should review before finalizing your agreement, advise you of your legal position and how the terms you reached with your spouse is different from what the law would provide, assist you with finalizing the negotiations, and give you advice on how to ensure the terms of the agreement are carried out once the agreement is signed.
Need help? I can assist you with finalizing and formalizing your agreement with your spouse; feel free to call or email me.