IMPORTANT TO HAVE
How to do a Separation Agreement?
- Avoid using templates and precedents, you would need to tailor make your Separation Agreement based on your circumstances.
- Use Simple and Clear sentences and Language to avoid any confusion in the future.
- Ensure the provisions and Legal requirements of Family Law Act 1990 are applicable
- Give specific details such as a full address of the matrimonial home, full the bank account information and branch of a bank account, the account number of an RRSP, full date and place of birth of all parties including children if any.
- Try to use number list as oppose to long paragraphs to cover list of items
- Never use the term “etc”
- Mention the income of the party specifically if it is an issue for calculating child support.
- Important Areas to cover would include: Property & Debts, Child Custody/access/visits and Support as well as Spousal Support.
Can a Separation Agreement be challenged in Court?
Yes, A separation agreement can be challenged in court and it can be set-aside by the court or varied or changed by the court. The court will review the separation agreement to ensure that both parties have had legal advice and received full and accurate financial information from each side as well as the legal requirements of contract law are satisfied. In other words, the Separation agreement is also subject to the principles of contract law and therefore if one of the following elements were present then the Separation agreement will be set- aside or varied by the court.
- Duress: Where one spouse pressures the other to sign the contract.
- Misrepresentation: Where one spouse does not provide full or accurate information such as financial information.
- Unconscionability: Where the terms of the agreement are unjust and unfair in the eyes of the court.
- Undue influence: Where one of the spouses influenced the other spouse to sign the agreement on account of their better position such as an offer to sign for sole custody in exchange for deleting all arrears of child support or transfer of property.
The courts will also be willing to vary the agreement if in the event the courts find that it is in the best interest of the child to have the terms of the agreement varied. Please consult your lawyer for more detail information to vary a separation agreement or a child custody order on the grounds of the best interest of a child.