4 Tips To Ensure Your Separation Agreement is Enforceable
If you have read our previous blog post (see here), you should now know there are significant advantages to retaining an experienced family lawyer to draft your separation agreement. You might now be asking, how do I actually ensure my ex-partner actually follows this agreement? We outline some of our top tips below:
(1.) Have it in writing
This may sound obvious but make sure your separation agreement is in writing! A verbal separation agreement cannot be utilized or relied upon.
The separation agreement must be:
- Dated – so it can be shown when the spouses came to this agreement
- Signed by the participating parties – to demonstrate the parties’ agreement to the terms and
- Signed by a third party witness – to ensure there has been no forgery.
If these elements are not met, then a court can dismiss the separation agreement.
(2.) Obtain full financial disclosure
As explained in the previous section, full financial disclosure on behalf of the parties and obtaining independent legal advice is a necessary step when completing the separation agreement. If the parties have not engaged in proper financial disclosure, the enforceability of the agreement is very low. A court will not enforce a separation agreement if a party was not fully aware of the other party’s financials.
(3.) Obtain Independent Legal Advice
Independent legal advice is a highly recommended step to take, even if the parties have drafted the agreement on their own. Having each party obtain independent legal advice prevents one party from relying on the fact that they did not know what they were agreeing to, that they were not aware of their rights at the time. If a party is not capable of fully understanding what they are agreeing to, or aware of the consequences of such an agreement are, it cannot be a binding contract.
(4.) File the agreement with Court
The final step after an agreement has been drafted is to file it with the court. It becomes an even more important step if there are support obligations in the separation agreement. Once the separation agreement has been filed with the court, it allows them to enforce these support obligations through the Family Responsibility Office (FRO). If the court is not aware of the spousal support obligations, it cannot enforce them.
Changing and Varying a Separation Agreement
While a separation agreement is meant to be enduring, the terms are not necessarily fixed forever. Where the circumstances of the spouses have changed, or something has occurred that could not have been contemplated during the drafting of the agreement, changes can be made.
The parties are able to set aside the agreement entirely, and agree to a fresh one, or the spouses can together agree to amend an existing term to better reflect any new circumstances. Any new agreement or amendment must also be drafted in writing, signed, dated, and witnessed to be valid.
Where there is a dispute between the parties in respect of a desired variation, a separation agreement should have designated dispute resolution methods. These can be negotiations between the parties, with or without a lawyer. Mediation or arbitration may also be mandated . An arbitrator can make a binding decision on the parties after their arguments have been presented (see our blog post on ADR here).
If the designated dispute resolution methods are unable to resolve the issue, a party is able to make an application to court for variation of the separation agreement. Courts do not make changes to separation agreements lightly since the purpose of the agreement was for spouses to reach a resolution freely and with consent. If court litigation is the process that is pursued, there must be a significant and compelling reason to vary the separation agreement.
Tailor Law can help you understand how a separation agreement applies to your situation. Family law and separation agreements are our areas of expertise and we can help navigate you through this difficult time.
If you are looking for more information or have additional questions, please do not hesitate to contact us. We will be happy to discuss your matter over a free consultation. You can reach our office at 905-366-0202 or contact us online here.