You’ve got to keep them Separated: How to Ensure a Separation Agreement is Binding

Often when couples separate amicably, to save on spending, they may choose to create an informal or formal separation agreement without consulting lawyers. With the uptick of artificial intelligence, or A.I., it is as simple as ever to get a draft done up for free and in minutes. Doesn’t this seem like a good idea to save time and money? The answer is it likely won’t save you any time and money, as you probably will not end up with an agreement that is legally binding (meaning it must be followed).

Although it is encouraged to remain cooperative and collaborative during a separation, the reality is that these unvetted separation agreements may leave both parties vulnerable if there should be challenges in the future. Every family is unique and requires a separation agreement with enough specificity to ensure that their interests are protected. With the dynamic nature of family law, it is important to keep this in mind when choosing which route to go.

If separation agreements are drafted and signed without lawyers involved, it can make them susceptible to court challenges. The court has the power to “set aside” entire separation agreements, or parts of them that aren’t in accordance with the law. Any parts of the agreement that are set aside are considered not to be binding anymore. Some of the key considerations a court looks at when deciding whether to set aside a separation agreement are, outlined in section 56 of the Family Law Act:

• a) Where the Agreement is not in the best interests of the children;

• b) Where child support within the contract is insufficient according to Provincial guidelines;

• c) If there is a lack of Financial Disclosure between he parties in relation to significant assets, debts or liabilities;

• d) The Agreement does not accord with the law of contract (general laws that apply in every contract signed, not just in the family law context);

• e) Where there is a restriction on the ability to remarry;

• f) Where there is a condition of chastity (abstinence from extramarital intercourse) in the Agreement.

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There are a few things that can be done to protect against these court challenges.

Firstly, it is important to obtain independent legal advice from a lawyer, who can advise you of any potential issues they see with the separation agreement. Although independent legal advice is not compulsory, it is always a good idea to ensure your interests are equally protected. Lawyers can also help to point out any parts of the agreement that may not be in accordance with family law rules, to ensure that parts of the agreement are not set aside if they are challenged in the future. They are also able to assist in writing out and formalizing a draft agreement, which can be a good reference for all parties involved if conflict arises.

Additionally, lawyers can assist in ensuring that proper financial disclosure is completed by both parties, which can also protect against challenges to signed agreements in the future. This is done so that both parties can make informed decisions about the division of property, and support payments that are outlined in the agreement. In Ontario, you are unable to contract out of child support, so explicitly outlining amounts, frequency and duration can be key factors in avoiding future discrepancies between the parties.

Separating takes a toll on everyone involved. To ensure that you have settled all aspects of your separation with finality, and prevent against future issues cropping up, the best thing to do is to involve a lawyer.

If you would like to discuss Separation Agreements or any other family law related matter in Ontario, please reach out to us at McDonald, Simon, Stewart and Reidy LLP. Our team is here to provide expert legal guidance and help you understand your rights and obligations. Don’t hesitate to contact us for a consultation - we’re ready to assist you!

Please reach out to us at info@mcdonaldsimon.com or call us at 519-273-2734.

Disclaimer: This blog should not be construed as legal advice. Each individual circumstance has nuances that need to be considered by a licensed legal professional and there is no one-size-fits-all answer in the law. If you require legal advice, please contact someone who is licensed with the Law Society of Ontario and is properly insured to provide legal services or practice law.