Are you looking to contest a separation agreement? Cohabitation agreements, marriage contracts, and separation agreements are all domestic contracts.

They are signed by spouses to detail how support and assets will be dealt with upon separation. For the most part, once they are signed, they will settle all (or most) of the issues between the spouses.

If you did not receive independent legal advice before signing the agreement, you might be able to contest it. For the same reason, it’s possible to contest cohabitation agreements if there was no ILA.

On occasion, a spouse may find themselves in a situation where they signed a contract and later determine that the contract as a whole or in part isn’t fair.

The Importance of Fair Asset Division in Separation Agreements

The Family Law Act sets out the most common grounds relied upon to set aside a domestic contract:

1. A party to a domestic contract failed to disclose a significant asset or debt in existence when the contract was formed
2. A party failed to understand the nature and consequences of the agreement
3. Any other ground upon which an ordinary contract may be attacked

Can I contest a separation agreement that has already been finalized?

It may be possible to contest a separation agreement that has already been finalized, but it is important to understand that this can be a complex and potentially challenging process.

In order to contest a separation agreement, you must have grounds for doing so. This could include demonstrating that the agreement was signed under duress or coercion, that it is unconscionable or unfairly biased in favour of one party, or that it was not properly executed.

If you believe that you have grounds to contest your separation agreement, it is important to seek legal guidance as soon as possible. A lawyer can help you understand your rights and options and advise you on the best course of action.

It is also important to keep in mind that the longer you wait to contest a separation agreement, the more difficult it may be to have it overturned. If you have concerns about the terms of your separation agreement, it is best to address them as soon as possible.

What are the grounds for contesting a separation agreement?

There are several grounds on which a separation agreement may be contested. Duress or coercion, where one party was forced or pressured into signing the agreement, is one possible ground.

Where the agreement is significantly imbalanced in favour of one party and unfairly disadvantages the other party, in another. Improper execution, such as the agreement not being signed by both parties or not being properly witnessed, is also grounds for contesting a separation agreement.

Fraud or misrepresentation, where one party lied or misled the other party during the negotiation process, is another ground for contesting a separation agreement.

Changes in circumstances, such as significant changes occurring since the agreement was signed that make it unfair or unreasonable, may also be grounds for contesting a separation agreement.

If you believe that you have grounds to contest your separation agreement, it is important to seek legal guidance as soon as possible to understand your rights and options.

Signing The Agreement

It’s important to do the domestic agreement correctly. For example, if a party failed to tell the other side to get ILA, the agreement might be set aside.

The first ground exists if one of the parties is dishonest about disclosure.  They did not provide complete disclosure regarding their financial status and the status of their properties.

The best way to ensure that your domestic contract will not be set aside on the first ground is to ensure there is proper disclosure. This would be done through sworn financial statements and disclosure of all supporting documents.

Contest A Separation Agreement

Parties are able to sign domestic contracts without using lawyers.  However, domestic contracts signed without legal advice are extremely vulnerable to being disregarded on a second basis.

The party signing didn’t know what they were signing and how it would affect their legal rights. The second basis for setting aside a domestic contract occurs most often occurs with parties who do not receive independent legal advice.

One party claims they were unaware of the consequences of the agreement when they signed it. The best way to eliminate this challenge to a domestic contract is to have both parties review the agreement with separate lawyers.

Both parties are aware of what they are signing.

Protecting Your Interests: Child Custody and Support Considerations

The first two categories are fairly specific to family law. The last category encapsulates the grounds that can be used to set aside contracts in general. This may include fraud, duress, or undue influence.

Fraud is when one of the parties purposely made a false representation during the creation of the agreement (often through non-disclosure).

Duress is where one party forces the other party to sign the contract by making threats.

Undue influence is where a party who has more power in the relationship uses that power to pressure the other spouse into signing the agreement. An example might be controlling the bank account.

Negotiation Techniques for Achieving the Best Separation Agreement Outcome

If you want to contest a separation agreement or ensure that your domestic contract is valid, speak to a family lawyer. The lawyers have experience assisting clients with domestic contracts.

When entering into a legal contract or agreement you have likely heard the term I.L.A. If the other party failed to tell you to get it, then you might have a good case to contest the agreement.

I.L.A. is the shorthand for Independent Legal Advice and is very important when dealing with family law agreements.

The Canadian family court system requires family law agreements to include specific proof that both parties have received I.L.A. This should come from two different lawyers to find the agreement enforceable.

Understand The Nature Of The Agreement

ILA can be complex, and financial disclosure is required in a number of domestic agreements. Family lawyers can provide legal services and help you create an agreement that is legally binding.

There is nothing worse than downloading a template agreement, and it gets thrown out by a judge years down the road.

Even though it may be frustrating, you cannot use one lawyer to provide I.L.A. to both parties in an agreement. The reason for this is to protect the individual parties from any prejudice or specific interest of one lawyer.

How Mediation Can Help Resolve Separation Agreement Conflicts

The lawyer maybe is in favour of one party over the other. It also protects lawyers so that if one party later thinks that they have been treated unfairly, they cannot attack the lawyer who acted for both parties.

They will have to bring up their issues with the separate lawyer that they dealt with to finalize the agreement.

At times it may be frustrating to spend additional money to have a short meeting with a new lawyer to review your family law contract. It often costs around $1500 for ILA.

It is always worth it to take such meetings seriously and to ask questions. The lawyer can provide a fresh pair of eyes to review the terms of the contract for errors or omissions.

Terms Of The Agreement

I.L.A.s are important to ensure that your family law agreement is legally binding. If you have the paperwork drawn up by yourself or your ex-spouse and both of you sign it, the court may choose to enforce it if you have to go to court.

There is no proof that both parties received I.L.A., therefore, the court is very likely to either ignore your homemade agreement.

Or maybe the family judge will give it little weight in their decision on your specific family law issues.

You can also bring your homemade agreement to your lawyer. They can work with you to reformat it into a fully enforceable family law agreement.

Just remember that you will also need to have one of the parties attend a separate meeting. This will happen with an independent lawyer to ensure that your agreement is legally binding.

Author: Alistair Vigier