Separation Agreements; Why Retaining a Lawyer is Prudent

Disclaimer: This article is provided for general information purposes only. It is not meant to be legal advice or create a lawyer-client relationship. If you need information or advice relating to your individual circumstances, you should consult with your own lawyer or retain the legal services of Anser Law.

If you’re amidst a relationship breakdown, you may be considering writing your own separation agreement in an attempt to avoid legal fees. Drafting a separation agreement without consulting a lawyer is ill-advised, and could lead to future legal expenses, which will likely be much higher than the cost of retaining a lawyer to draft the original contract. The following overview of the legal requirements of a valid and enforceable separation agreement clearly show why retaining a family law lawyer is the prudent course of action.
Rules for separation agreements are set out in the Ontario Family Law Act. An agreement is deemed to be a separation agreement if it deals with issues subsequent to the parties’ separation such as:
• Child custody and access
• Child support and/or spousal support
• Divisions of assets and assignment of debts
However, dealing with these issues alone does not ensure that the separation agreement will hold up if challenged in court.
S. 56(4) of Ontario’s Family Law Act sets out additional (and more complex) criteria which a separation agreement must fulfil in order to be enforceable. A court has the authority to set aside the entire separation agreement (or a provision in it), essentially rendering the contract useless if these criteria are not met. Due to the complex legal nature of a separation agreement, courts have commonly invalidated agreements where one or both parties have failed to obtain independent legal advice.
The criteria in s.56(4) are:
1. The parties must understand the nature and consequence of the agreement
2. The parties must have disclosed to each other their significant assets, debts and other liabilities
3. The agreement must be in accordance with the law of contract

1. Understanding the Agreement
In order to ensure both parties understand the agreement, it is strongly suggested that both parties seek independent legal advice from separate lawyers. Having a lawyer review and explain the nature and consequences of the separation agreement ensures that this criterion will be satisfied. Your lawyer will explain the significance of the legal terms in the agreement and the practical implications of these terms. Your lawyer will also help analyze whether the deal in the agreement is a good one or a bad one for you, and what terms might be imposed if your matter were to go to court. If the agreement is in fact “a bad deal” you must be aware of this at the time of signing, or your agreement will not be enforceable. After thoroughly explaining the agreement to you, your lawyer will issue a certificate of independent legal advice.

2. Financial Disclosure
The financial circumstances of both parties need to be fully understood in order to determine whether or not the proposed agreement is a “good” or “bad” deal. When reviewing a separation agreement, the court will look at whether there was sufficient financial disclosure so that the parties could determine whether this deal was a good one to agree to. A lawyer will be able to advise you of which assets need to be disclosed and the manner in which this financial information should be provided to the other party.

3. Contract Law
For a separation agreement to be enforceable, it must adhere to the general law of contract. The criteria for a legally binding contract require that:
• Both parties must agree to the subject matter of the contract
• The contract must be in writing
• The contract must be signed and witnessed
• The contract must not contain any illegal terms
• The contract must be made without undue influence or duress
In relation to a separation agreement, negotiation and signing of the agreement must be free oppression, pressure, or other vulnerabilities. If the relationship between the parties is characterized by a power imbalance (one party exerts psychological or emotional dominance over the other) then a judge will likely strike down the agreement and render it void.
In addition to these requirements as outlined in the Family Law Act, case law also affects the legal standard for valid and enforceable separation agreements. Case law is always evolving and can be equally as challenging to navigate.
This brief overview does not even begin to touch on all the complexities surrounding a separation agreement. The best way to ensure that your separation agreement is valid and enforceable is to retain a competent family lawyer to draft the agreement and guide you through the process.
For assistance in drafting a separation agreement, contact our office and a family lawyer will be pleased to assist you.