Does a Separation Agreement Need to be Witnessed?

Today we'll be discussing another interesting topic in the sphere of family law - the necessity of signing marriage contracts and separation agreements in the presence of a witness.

Section 55 (1) of the Family Law Act states that a domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed. However, a recent Ontario Court of Appeal decision, namely Gallacher v. Friesen seems to suggest a less stringent reading of the section.

Thank you for joining me today for yet another interesting topic in the sphere of Family Law. My name is Anna Troitschanski and I am an associate with the Feldstein Family Law Group.

It is a known fact for every family law lawyer that a marriage contract or separation agreement must be signed in the presence of a witness. In the aforementioned case, the parties entered into a marriage contract where both individuals received independent legal advice but one party signed the Agreement in the absence of a witness. The issue in this matter was whether the contract was enforceable in light of the fact that Section 55 (1) requires a domestic contract to be witnessed.

The Court of Appeal seems to indicate that the purpose of the legislature is to encourage rather than discourage domestic contracts. As such, a strict reading of the section would be inconsistent with this intent. The court further states that s.55(1) of the Family Law Act may be relaxed when the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract.

It seems that this case requires further clarification on the question of whether a separation agreement needs to be witnessed, but pursuant to this particular fact scenario it appears that a domestic contract may be enforceable even in the absence of a witness’s signature.

If you would like more information about the formalities of a separation agreements or have any other questions pertaining to your matrimonial matter, please contact us in order to book a consultation with one of our lawyers at (905) 581-7222.

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