5 Ways to Make a Separation Agreement

Separation agreements can be a useful means by which separating spouses can take first steps towards unwinding their financial and family-related affairs through a mutual agreement.  Here are the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

  1. Make sure it covers the right topics

The Ontario Family Law Act allows for two parties who have cohabitated and are now living separately to enter into an agreement in which they agree on their rights, including:

  • ownership/division of property;
  • support obligations;
  • the right to direct the education and moral training of their children;
  • the right to custody/access to children; and
  • any other matter in the settlement of their affairs.
  1. Make sure it is freely negotiated

A court will likely strike an agreement down and render it void if one of the parties exerts undue psychological pressure on the other party, if the relationship is characterized by one party being psychologically or emotionally dominant over the other, or if the separation agreement was signed in a situation involving duress.

  1. Get independent legal advice

Time after time, courts have invalidated a separation agreement where one or both parties have failed to obtain independent legal advice.  Both parties must have had separate legal representation.  This means each party has had the opportunity, in advance of the parties signing the agreement, to consult privately with their lawyer to fully canvass all possible issues and repercussions

  1. Get the formalities correct

Like any other legal contract, a separation agreement can only be entered into by those who are of legal age and who have full mental capacity to enter into one.  The Family Law Act also adds other validity requirement for separation agreements and other domestic contracts.  These agreements are unenforceable unless they are made in writing, are signed by the parties, and are witnessed.

However, there are rare occasions where courts may find a separation agreement to be valid even if it did not comply with the Family Law Act’s requirements, as long as the parties met the usual requirements for the formation of a contract.

In the case of Robinson v Robinson, the first wife had signed a separation agreement that waived her right to her former husband’s pension.  The agreement had not been properly witnessed, and although the wife had intended to read it thoroughly and get legal advice on it, she never did.  Nonetheless, the court upheld the agreement, finding that she had signed it willingly, had agreed to its terms and had conducted herself and arranged her financial affairs as if there was a valid agreement in place.  However, cases such as this are the exceptions.  In order to ensure the utmost certainty, it is always a good idea to ensure all legal formalities relating to the creation of a domestic contract are complied with.

  1. Be clear on the terms

It is very important that the terms of the agreement are clear.  Courts are filled with former spouses who mistakenly thought they had reached a mutually acceptable separation agreement.

In the case of Schnarr v. Schnarr, the spouses entered into a separation agreement that provided that agreement would become void if the parties cohabited for more than 90 days for the primary purpose of reconciliation.  After a period of living together, the wife claimed the agreement had become void.  However, the court disagreed.  Although the parties had indeed lived together for more than 90 days, the husband mainly slept on the couch, and the wife remained argumentative, manipulative, controlling and showed interest in other men.  In short, the wife has no intention of reconciling during that 90-day period in the manner contemplated by the agreement.

Separation agreements, when valid and freely negotiated, can be a useful and important step towards the amicable resolution of the issues between separating couples.