What is a Separation Agreement?
When spouses or common-law partners separate, they often opt to enter into a separation agreement. A separation agreement is a legally binding contract which outlines how key issues such as parenting, support, and property division will be addressed. Parties frequently prefer separation agreements to a long and drawn-out court process because they have potential to offer more certainty, clarity, and flexibility over their affairs.
Because separation agreements are contracts, the court generally respects them and expects the parties to abide by their terms. This does not mean, however, that they are set in stone.
When can my Separation Agreement be varied?
The most simple and straightforward way to vary a separation agreement is to have both parties agree to the changes. This can be done by way of an amending agreement which formally modifies the previously signed separation agreement. Alternatively, you and your spouse may agree to create a new separation agreement altogether.
If one party does not agree to a change, the other party will have to seek assistance from the court to vary a separation agreement under specific circumstances. They may do so by filing a Motion to Change to vary or an Application to set aside the agreement.
The court may use their discretion to vary certain terms of a separation agreement if there has been a “material change in circumstances” since the signing of the agreement. A material change in circumstances is a change that is substantial, enduring, and not reasonably foreseen by the parties. For instance, in the context of parenting agreements, relocation of a party’s residence which impacts the feasibility of the current parenting schedule is likely to be considered a material change. With respect to spousal support cases, a partner’s significant increase or decrease of income may warrant court intervention. See our blog “Post-Separation Increases in Wealth: Are you Entitled to a Share?” for more information on a party’s entitlement to their partner’s substantial post-separation increase in income.
When can my Separation Agreement be set aside?
Section 56(4) of the Family Law Act outlines that a court may set aside a provision of a separation agreement or an entire contract in one of the following circumstances:
1. If a party failed to disclose significant assets or debts that existed when the agreement was entered into;
2. If a party did not understand the nature or consequences of the domestic contract; or
3. If the contract is unconscionable, or there has been a mistake, or presence of undue influence that renders the contract as being not in accordance with the law.
It is important to keep in mind that courts will likely refrain from changing agreements that are considered valid. There are very few circumstances in which a court would get involved in varying a separation agreement. In the absence of a material change, this means being able to prove that your separation agreement – or provisions of it – are invalid.
Although separation agreements often try to contemplate future circumstances, they are not written with the help of a crystal ball. The agreements you made when you separated may no longer appropriately apply to your current reality. An experienced family lawyer can give you personalized legal advice if you are seeking to challenge or enforce your separation agreement.