The issue of whether you can ever really be sure that separation agreement is legally binding is a tricky one. It s also referred to as a divorce agreement or as minutes of settlement. Essentially it is a contract between persons who have been, and maybe still are, legally married, or who have been in a so-called common law relationship. It addresses things like how property is to be divided, the payment of spousal and child support, and how children are to be cared for.
As with any contract one party is always free to ask a court to change or void it all or in part. That does not mean the court will agree. But you can never be totally certain that a separation agreement will be declared binding by a court. The only way to know is if it really does end up in court before a judge.
Although like other contracts in some ways, in other ways a separation agreement is unique. The Supreme Court of Canada said that the uniqueness of the circumstances surrounding the creation of a separation agreement means it is different than other types of contracts. It means there is a higher chance a court will refuse to follow it then with some other agreement.
To be as confident as you can possibly be that your separation agreement will be supported by a judge you should see that it is fair to both you and your ex. If you don’t you will just be opening the possibility that a judge will declare the agreement “unconscionable” and toss it out.
Recently the Supreme Court of Canada decided that a particular separation agreement was unconscionable and made a British Columbia man pay $600,000+ to his ex. They had been married 27 years and separated in 2000. The court had two issues with their separation agreement:
First, the wife was suffering from mental illness.
Second, the husband did not reveal their actual financial circumstances to his wife – he was hiding some money.
The husband said that the wife had been advised by a lawyer before signing the agreement and she signed anyway. He argued that this meant her mental problem should not be an issue. But the judge felt that it was the combination of the wife’s unhealthy mental state and the husband’s dishonesty that was the real problem. He was taking advantage of her condition so it was not fair to hold her to their separation agreement.
This case shows that to make sure your agreement will be upheld by the court you have to ensure that the negotiations are done fairly and both parties have complete access to the relevant information.