Can I set aside my separation agreement?
WHEN CAN A SEPARATION AGREEMENT BE SET ASIDE?
Setting aside a Separation Agreement Part 1
Setting Aside a Separation Agreement Part 2
Setting Aside a Separation Agreement Part 3
Many couples will opt for a separation agreement when looking to divorce. If you would like to learn more about this process you can read my post entitled, What is a Separation Agreement? and also Should I get a Separation Agreement?
Many are surprised to learn that a separation agreement can under limited circumstances be set aside. This requires a court application pursuant to section 56(4) of the Ontario Family Law Act.
The provision reads as follows:
A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).
In many situations when receiving Independent Legal Advice a lawyer will advise about the potential consequences of section 56(4).
This setting aside can even take place years later. For many entering into a separation agreement this does not provide for peace of mind and can cause for alarm. Since, many will presume for good reason that the separation agreement is a full and final resolution of all disputes. There are and can be many situations where an individual may require for good reason to have an agreement set aside.
Generally, though courts want to respect the intentions of the parties that entered into the agreement. Courts are reluctant to circumvent the spirit of the separation agreement.
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